McKinney v. Pate

FAY, Circuit Judge:

Millard McKinney, the former Osceola County Building Official, appeals the district court’s order setting aside the jury verdict in his favor because there was substantial evidence to support his claim that the Osceola Board of County Commissioners [hereinafter “the Board”] violated his right to substantive due process by terminating him without cause. In opposition, the Board1 asserts that the question of whether there is a violation of McKinney’s rights under substantive due process is a question of law for the court. It further argues that if the court finds evidence to support a rational basis for the Board’s decision to terminate Mr. McKinney, it must enter judgment in favor of the defendant Board, notwithstanding the jury’s verdict. We find the district court erred in setting aside the verdict in favor of McKinney. Accordingly, the district court’s order is VACATED and the judgment in favor of McKinney is reinstated.

I. Facts

Millard McKinney was hired as the Osceola County Building Official on July 27, 1987. The Building Official is the head of the Building Division, one of three divisions within the Osceola County Development Department. The parties agree that both the Building Division, and the Development Department as a whole, were the target of complaints from the public and that the Board had been investigating ways to improve the public’s perception and the performance of these departments. McKinney testified that he was hired with a mandate to address some of the problems the Building Division had experienced, specifically laxity in enforcement of the building codes, and that he successfully brought about needed reforms and improvements.

In the spring of 1988, almost a year after McKinney was hired, at least two “workshops,” or public hearings, were held to discuss on-going problems in the Development Department, including the Building Division. McKinney asserts that these problems were “the same as in any Building Division anywhere.” Appellant’s Brief at 5. The Board, in contrast, asserts that these workshops were held in response to complaints about McKinney and constitute evidence of his poor performance. The undisputed evidence is that, whatever the source of the problems leading to the public hearings, McKinney’s performance reviews before and after these hearings were uniformly excellent. Undisputed also is that the Osceola County Policy Manual in effect at the time, and applicable to McKinney, provided that permanent employees such as McKinney could only be terminated for cause and in accordance with the procedures established therein.

Mr. McKinney’s direct supervisor was Jack Shannin. Shannin, in turn, reported to Eleanor Anderson, the County Administrator, who reported directly to the Board of County Commissioners. In November of 1988, three new members were elected to that Board. Jack Pate was one of these new commissioners. Shortly after the election, Anderson testified that the new Board met to discuss needed changes in the Building Division, although at trial the Board members denied that any such meeting took place. The upshot of the alleged meeting, as Anderson testified she understood it, was that McKinney was to be terminated. She in turn instructed Jack Shannin, her subordinate, to fire McKinney. Shannin testified that he twice asked for McKinney’s resignation in compliance with Anderson’s instructions. It is undisputed that the formal requirements or procedures of the policy manual were not followed in connection with this request. In*1504deed, McKinney testified that he was not given any reason for his requested resignation other than that the commissioners wanted it.2 When McKinney protested that Shannin had no reason to fire him, McKinney testified, that Shannin replied, “I don’t have anything. But I’ll get something.” R3-55-132.

In January of 1989, Shannin and Anderson met with McKinney and gave him a list of the reasons for his proposed termination. Immediately thereafter, on three non-consecutive days, hearings regarding these charges were held before the Board itself, instead of the Personnel Committee as provided for by the county’s policies. McKinney presented evidence to refute the charges and challenged the validity of some of the testimony as being unverified or motivated by personal animus. Nevertheless, on February 1, 1989 the Board entered a finding that McKinney’s termination was justified on the basis of the evidence it heard.3 McKinney was terminated and this suit ensued.

The crux of McKinney’s argument is that the reasons given for his termination were pretextual, and that the hearing was held in an attempt to disguise the Board’s illegitimate motives with an appearance of regularity. McKinney suggests those motives were that some Board members, in particular Mr. Pate, were unhappy with him because he was enforcing the code as required. McKinney claims that Pate had ties to contractors who were unhappy because they wanted special treatment, waivers and exemptions to which they were not entitled.

There is substantial evidence to support this claim. Mr. Pate was formerly employed in the Building Division. Prior to McKinney’s arrival, Pate had been rejected for the position ultimately awarded to McKinney. Pate was also employed by a dry wall subcontractor whose work, in the normal course of business, was inspected by McKinney’s department.4 Most significantly, both before and after his election to the Board, Pate approached McKinney regarding projects with code violations, although the nature and extent of his intervention is in dispute.5 Despite the substan*1505tial evidence in support of McKinney’s claim and the jury verdict in his favor, the district court granted the Board’s motion for a judgment notwithstanding the verdict.6

II. Standard of Review

Motions for judgments notwithstanding the verdict are subject to de novo review. Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 644 (11th Cir.1990). The reviewing court therefore applies the same standard in such cases as the district court is required to apply. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989).

[W]e consider all the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmoving party. If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict, then the motion was properly granted. Conversely, if there is substantial evidence opposed to the motion such that reasonable people, in the exercise of impartial judgment, might reach differing conclusions, then such a motion was due to be denied and the case was properly submitted to the jury.

Id. at 581 (citations omitted). Under this standard “there must be a substantial conflict in the evidence to support a jury question.” Id. at 581.

The evidence in this case reflected such a conflict. Indeed, even though the balance of the evidence probably favored McKinney, the conflict in the evidence was sufficient to deny McKinney a directed verdict, had he asked for it. Accordingly, a judgment notwithstanding the verdict in favor of the Board was inappropriate where the jury had resolved the disputed factual issues in McKinney’s favor. The Board attempts to avoid this result by arguing that the issue of whether McKinney’s rights of substantive due process were violated is to be decided by the judge, and further, that the existence of any evidence to support its termination of McKinney compels the court to rule in its favor. This argument, as will be demonstrated below, is not supported by the law.

III. Substantive Due Process

McKinney asserts that, pursuant to county policy, he could only be discharged for cause, and that instead his discharge was founded on illegitimate motives. This action he claims deprived him of a protected property interest in his job without substantive due process.7 It is well settled that such claims state “a substantive due process violation — deprivation of a property interest for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis.” Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982). See also Adams v. Sewell, 946 F.2d 757, 766 (11th Cir.1991); Barnett v. Housing Authority of Atlanta, 707 F.2d 1571, 1577 (11th Cir.1983). The distinguishing feature of such claims, in contrast to procedural due process claims, is “that certain governmental conduct would remain unjustified even if it were accompanied by the most stringent of procedural safeguards.” Gilmere v. City of Atlanta, 774 F.2d 1495, 1500 (11th Cir.1985) (en banc), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).

For its argument that this case did not present a jury question, the Board relied on Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1578 n. 15 (11th Cir.1989), reh’g denied, en banc, 893 F.2d 346 (1989). Greenbriar was a zoning case where the plaintiffs argued that a zoning regulation deprived them of substantive due process. *1506In Greenbriar we noted that the enactments of legislative or quasi-legislative bodies, such as a zoning board, “ ‘are entitled to a presumption of validity.’ ” Id. at 1577 n. 14 (citing Couf v. DeBlaker, 652 F.2d 585, 588 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982)). In that context, we held that the “ultimate issue of whether a zoning decision is arbitrary and capricious is a question of law to be determined by the court.” Id. at 1578.

The Board argues, pursuant to Greenbr-iar, all substantive due process questions are to be submitted to the judge and, further, it appears to rely on the presumption of validity discussed in Greenbriar to argue that if there is any evidence to support its position that McKinney’s firing was not arbitrary and capricious, then it is entitled to judgment in the Board’s favor. The Board misperceives the nature of the rule and the discussion in the Greenbriar case.

It is one thing to presume that a rule or statute of general applicability is not arbitrary and capricious. It is quite another to make such a presumption where the government action disproportionately affects one person. This is not to say that whenever an official government entity discharges an employee that it may not be acting in the public interest. Theoretically, all of the government’s actions are in the public interest. However, actions that are of general applicability, on their face, raise fewer concerns about improper motives than actions directed at one person. Presumably, the very purpose of the “for cause” provision in the County Policy Manual is to insulate non-elected, public employees from illegitimate political pressure and retaliation, in recognition of the fact that hiring and firing decisions potentially raise troubling questions of motive in ways that ordinary rule-making and legislation do not.

In addition, by their nature, zoning regulations or laws must be analyzed in part on the basis of their wording, a task for which the judge is particularly suited as this is the familiar exercise of statutory interpretation. Regulations may or may not be facially neutral. Moreover, collateral facts, found by a jury, may indicate that a facially impartial regulation is not impartial in fact. In contrast, the act of terminating an employee for illegitimate reasons has already been deemed a violation of substantive due process. See, e.g., Adams v. Sewell, 946 F.2d at 766. The only thing left to be determined is whether, in a particular case, the facts support such a conclusion. This purely factual inquiry is the province of the jury.

The jury here had to answer two questions.8 The first was whether there was substantial evidence to support the Board’s proffered grounds for discharging Mr. McKinney.9 The jury answered this question in the negative. The second question was whether the jury believed McKinney’s claim that his firing was founded on illegitimate motives.10 It answered this question in the affirmative and awarded McKinney *1507$145,000.00 on his claim. While there were certainly disputed points, the evidence was clearly such that reasonable people could reach different conclusions as to what had occurred. Where the evidence is such that reasonable people could differ, the issue is appropriately resolved by a jury and the judge is not free to substitute his or her opinion for that of the jury. Thus, the district court’s ruling setting aside McKinney’s judgment was clearly erroneous and is vacated.11

IY. Accrual of Interest

Although the district court’s order setting aside the jury verdict indicated that a judgment for the Board, consistent with its order, would be forthcoming, no such judgment was ever entered. Thus, the only judgment in this case was entered in favor of McKinney on March 21, 1991. With the reversal of the court’s order setting that verdict aside, the judgment for McKinney is automatically reinstated as of the date of entry. Therefore, interest should accrue from the date of the original judgment.

V. Conclusion

For the foregoing reasons we vacate the district court’s order setting aside the jury verdict. As the judgment in favor of McKinney has already been entered that judgment is hereby reinstated and the matter is remanded to the district court for entry of the appropriate orders.

VACATED and REMANDED.

. McKinney voluntarily dismissed his action against the defendants John Pate and Jack Shannin in their individual capacity. Therefore, the Osceola Board of County Commissioners is the only defendant remaining in this appeal.

. The county's employment policy required written notice and an opportunity to improve before a permanent employee could be fired.

. The Board specifically noted that its decision to terminate McKinney was not based on the alleged conflict of interest arising from McKinney having had employees under his supervision inspect the construction of his private residence. Now the Board claims that this fact was crucial to its decision. At trial the commissioners testified that this "conflict” was a significant factor in their decision, despite their assertion at the time that the issue of McKinney's house was not the reason for their decision. The district court also apparently found this "conflict" very significant. Rl-47-4. We are not so impressed with the gravity of this charge. Indeed, the inordinate emphasis placed on this "conflict" tends to support McKinney’s case rather than that of the Board.

First, the advisory opinions from the Florida Commission on Ethics clearly illustrate that the Florida statute, § 112.313(7)(a), which the Board claims prohibits McKinney from having his home inspected by members of his own department, is directed at public officials who have business interests which conflict with their public duties. See Rl-39, Attachments, Op. 81-20 (dated April 2, 1981) & Op. 81-51 (dated September 17, 1981). Thus, it is debatable whether the statute was meant to apply in the construction of a private residence because any interest McKinney may have in cutting costs by skirting the code would seem to be offset by the fact that he bears the risk of loss or injury if the building fails to meet code specifications. Second, it is undisputed that the division had no specific policy to deal with such conflicts. Third, there is substantial evidence that numerous similar, if not more egregious, conflicts arose with other members of the department and the commission and did not occasion comment, let alone dismissal, of those individuals.

. This is only one of the many apparent or potential conflicts of interest, revealed by the evidence, that apparently have not occasioned any comment or censure.

. McKinney testified that Pate approached him on behalf of the contractors involved in various jobs in an attempt to get McKinney to waive or overlook code violations. Pate’s testimony on this point is conflicting. Initially, he acknowledged approaching McKinney regarding some of these jobs and acting on behalf of the contractors involved. Later he denied that he acted on their behalf, or that he was attempting to get McKinney to use his discretion in their behalf, but he did not offer any concrete alternative explanation for his actions regarding these projects.

. The district court’s order is rather general and conclusory. Therefore, the basis for its conclusion that the "conflicting evidence” compelled a judgment in the Board's favor is unclear. In the absence of other grounds, we assume the court relied on the arguments of the Board's counsel and that its reasoning corresponds to that advanced by the Board.

. The issue of whether an employee has a protected property interest in his job is a matter of state law. Barnett v. Housing Authority of Atlanta, 707 F.2d 1571, 1576 (11th Cir.1983). Florida courts have held public employees have such an interest when they have a right to be discharged only for cause. See, e.g., West v. Board of County Comm’r., 373 So.2d 83, 85-86 (Fla. 3rd DCA 1979).

. Although the Board objected to the jury interrogatories at trial, they have not cross-appealed this issue so it is waived.

. The question read: "Was there substantial evidence that the plaintiff was fired because of incompetent or inefficient performance of the duties of the office?” Rl-41-1.

. The question read: "Was the plaintiff fired because of political or personal animosity because of plaintiff's enforcement of the building codes?" Rl-41-1-2.

This question requires some clarification. The gravamen of McKinney's complaint is that he was fired because certain commissioners wanted to continue a practice of lax enforcement of the building codes as an improper concession to commercial developers and contractors. He characterizes this as a "political” motive. Here "political" must be read with the qualifier "improper,” because "political” cannot mean "improper” in all cases. Sometimes the "just cause” for a dismissal may have its roots in the political. For example, a public employee who is so unpopular that he is ineffective is in danger of termination for cause. Ultimately, however, the "cause” is his ineffectiveness, not his unpopularity. In this case, although the Board attempted to argue that McKinney was ineffective, and therefore dismissed with cause, the jury found the weight of the evidence did not support the Board’s position. This question might have been more clearly worded to emphasize that "political” did not invariably mean "improper,” although that was its meaning in the context of this case.

. The Board argues that this case should be remanded for a new trial should we find the district court’s order was erroneous. However, although the Board argued this in its original motion for a judgment notwithstanding the verdict, it did not cross-appeal the issue. The failure to cross-appeal renders this point waived and without merit.