IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-60585
_____________________
TINA DAVIS LOLLAR,
Plaintiff-Appellee,
versus
PAMELA BAKER, Etc.; ET AL.,
Defendants,
PAMELA BAKER, Individually, and in
her official capacity as Facility
Director of South Mississippi
Regional Center,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________
December 6, 1999
Before JOLLY and SMITH, Circuit Judges, and SARAH S. VANCE,*
District Judge.
E. GRADY JOLLY, Circuit Judge:
These section 1983 claims present questions of qualified
immunity. The defendant and appellant is Pamela Baker. She is the
facility director of South Mississippi Regional Center, (“SMRC”),
a state agency. This appeal arises from the district court’s order
lifting the stay of discovery. Baker contends that she is
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
protected by qualified immunity from having further to respond to
the section 1983 claims asserted by the plaintiff, Tina Davis
Lollar. Lollar, an employee of the SMRC, alleges that Baker, her
supervisor, violated her Fourteenth Amendment due process rights by
reassigning her to a different position, and by failing to consider
her for a promotion. Additionally, Lollar, who has a visual
disability, alleges that Baker further violated her federal rights
under the Rehabilitation Act, and she contends that section 1983
provides her with a remedy for that violation. With respect to the
Fourteenth Amendment due process claim, we hold that Baker is
shielded by qualified immunity because Lollar has failed to
demonstrate that Baker deprived her of a property interest. We
further hold that section 1983 does not provide a remedy for
violations of the Rehabilitation Act, and that Baker enjoys
immunity from suit based on this claim, as well. We therefore
reverse the district court and remand the case for dismissal of all
claims against Baker in her individual capacity.
I
A
In April 1994, Tina Davis Lollar was hired as the Director of
the Psychology Department at the South Mississippi Regional Center,
a state institution operated by the Mississippi Department of
Health. From April 26, 1994, until October 1, 1996, Lollar held
2
the job title of Director, Psychology Department. In February
1996, the position of Bureau Director became available, and the job
was formally posted. Although Lollar believed she was qualified
for the position, Baker contends that she was not eligible because
the position required a degree that Lollar did not possess. As a
result, Baker did not further consider Lollar for the position.
Shortly thereafter, effective October 1, 1996, Lollar was
laterally transferred without loss of salary or benefits, to the
position of Director, Psychological Support, Community Services.
This new position required Lollar to drive from SMRC’s main office
to three outlying offices, a task that, because of her sight
impairment, required someone to drive her to the outlying offices
on dark days and at night. Lollar alleges that, despite repeated
requests, Baker failed to implement any systematic method for
dealing with Lollar’s need for assistance. Lollar’s needs,
however, were met on an ad hoc basis each time upon request.
B
On November 6, 1997, Lollar filed suit in the United States
District Court for the Southern District of Mississippi against
SMRC, the Mississippi State Department of Health, and Dr. Randel
Hendrix and Pamela Baker in their individual capacities. With
respect to Baker, Lollar’s claims were brought under 42 U.S.C.
§ 1983. She alleged that Baker violated her Fourteenth Amendment
3
due process rights by arbitrarily reassigning her from the position
of Director of the Psychology Department to the position of
Director of Psychological Support, Community Services. Lollar also
alleged that Baker violated her due process rights by arbitrarily
refusing to promote her to the position of Bureau Director.
Additionally, Lollar alleged that Baker’s failure to provide her
with reasonable assistance to accommodate her disability, and
Baker’s decision to reassign Lollar to the position of Director of
Psychological Support, Community Services, deprived her of rights
under the Rehabilitation Act,1 for which section 1983 provides her
with a remedy.2
1
The Rehabilitation Act provides in relevant part:
No otherwise qualified individual with a disability in
the United States, as defined in section 706(20) of this
title, shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance or under any program or activity conducted by
Executive agency or by the United States Postal Service.
29 U.S.C. § 794 (West 1999).
2
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress. . . .
42 U.S.C. § 1983 (West 1999).
4
On January 22, 1998, Baker filed an answer and raised the
defense of qualified immunity with respect to these section 1983
claims. On January 26, Baker filed a motion to require a specific
reply to her immunity defense, and to hold discovery in abeyance
until such a reply was filed. On February 24, the magistrate judge
granted the defendant’s motion to require a specific reply as to
qualified immunity, but denied the motion to hold discovery in
abeyance. Following the magistrate judge’s order, Baker filed an
objection to the decision. On March 19, the magistrate judge held
a case management conference. On April 1, the magistrate judge
entered an order requiring Lollar to file her reply to Baker’s
claim of qualified immunity no later than April 10, and giving
Baker until April 22 to file a motion to dismiss or for summary
judgment. The order also held all discovery in abeyance until
April 22.
On April 8, Lollar submitted her reply brief to Baker’s
assertion of qualified immunity. Thereafter, Baker filed a motion
to dismiss or for summary judgment. On August 21, the magistrate
judge entered an order finding that Baker had stated a claim of a
violation of a clearly established statutory or constitutional
right, and ordered the stay on discovery to be lifted to allow
discovery to “proceed with regard to the issues relating to the
5
defense of qualified immunity.” Baker filed a timely appeal from
that order.3
II
A
The question presented in this appeal is, as we have noted,
whether Baker is entitled to qualified immunity from these section
1983 claims. To reach this ultimate determination, we must address
two underlying questions: (1) Whether, under Mississippi law,
Lollar has a clearly established property interest in the
noneconomic aspects of her job; and (2) Whether section 1983
provides Lollar with a remedy against Baker for her alleged
violations of the Rehabilitation Act.
B
To show a due process violation in the public employment
context, the plaintiff must first show that she had a legally
recognized property interest at stake. See State of Texas v.
Walker, 142 F.3d 813, 818 (5th Cir. 1998); Spuler v. Pickar, 958
3
We have appellate jurisdiction to review this order. See
Wicks v. Mississippi State Employment Service, 41 F.3d 991 (5th
Cir. 1995). In Wicks, we examined whether the grant of a
plaintiff’s discovery request in such a circumstance constitutes a
denial of the defendant’s claim of qualified immunity from which
the defendant is entitled to an immediate appeal. Id. We
answered, yes. We held that the grant of a discovery order with
respect to a defendant’s claim to qualified immunity “denies [the
defendant] the benefits of the qualified immunity defense, thereby
vesting this court with the requisite jurisdiction to review the
discovery order.” Id. at 994.
6
F.2d 103, 107 (5th Cir. 1992)(stating that a prerequisite to a
substantive due process claim is the establishment of a
constitutionally protected property right). Such a showing, as the
court noted in Schaper v. City of Huntsville, 813 F.2d 709 (5th
Cir. 1987), must be made by reference to state law. “The
Constitution does not create property interests; `they are created
and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law.’” Schaper, 813 F.2d at 713(quoting Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)); see
also Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48
L.Ed.2d 684 (1976)(stating “a property interest in employment can,
of course, be created by ordinance or by an implied contract . . .
in either case, however, the sufficiency of the claim of
entitlement must be decided by reference to state law”).
C
Lollar contends that under Mississippi law, she had a property
interest in her specific supervisory job from which she was
reassigned. She points us to Bishop v. Wood, 426 U.S. 341 (1976),
and Miller v. City of Nederland, 977 F.Supp. 432, 436 (E.D. Tex.
1997),4 and § 25-9-127(1)5 of the Mississippi Code of 1972 in
4
Lollar argues that the Supreme Court ruling in Bishop, and
the Eastern District of Texas holding in Miller support her claim
of a property interest in the duties and responsibilities of her
7
support of her contention. See also, Mississippi State Employee
Handbook (effective date 9/96), § 3.0, p. 8 (recognizing a property
interest in each state service employee’s job). For the reasons
noted below, neither Bishop nor Miller is relevant. On the other
hand, Mississippi Code § 25-9-127 does create some property
interest in jobs that fall within the ambit of that statute.
Specifically, the statute guarantees that there will be no loss in
“compensation or employment status” except for “inefficiency or
other good cause.” Miss. Code Ann. § 25-9-127 (1999).
Although it is clear that under Mississippi law a property
interest may be created in a particular job, that property interest
job. Bishop, however, merely directs the court to look to state
law to determine whether a property interest has been created.
Bishop, 426 U.S. at 344. Additionally, Miller--which is in
conflict with our decision in Kelleher v. Flawn, 761 F.2d 1079 (5th
Cir. 1985)(stating that we expressly rejected a public employee’s
claim of entitlement to the specific duties that she had prior to
reassignment under Texas law)--is not controlling of whether
Mississippi recognizes a property interest in the noneconomic
aspects of a job.
5
Mississippi Code § 25-9-127 states in relevant part:
No employee of any department, agency or institution who
is included under this chapter or hereafter included
under it authority, and who is subject to the rules and
regulations prescribed by the state personnel system may
be dismissed or otherwise adversely affected as to
compensation or employment status except of inefficiency
or other good cause, and after written notice and hearing
within the department, agency or institution as shall be
specified in the rules and regulations of the State
Personnel Board complying with due process of law. . . .
Miss. Code Ann. § 25-9-127 (1999).
8
is generally limited to the financial remuneration of that job.
See Robinson v. Boyer, 825 F.2d 64, 67 (5th Cir. 1987). No
property interest lies in the particular duties and
responsibilities of a job. See Mississippi Forestry Commission v.
Piazza, 513 So.2d 1242 (Miss. 1987); Davis v. Mann, 882 F.2d 967,
973 (5th Cir. 1989)(holding that pursuant to Mississippi law, the
plaintiff, a state university resident dentist does not have a
property interest in the duties and responsibilities of his
employment); Robinson, 825 F.2d at 67 (stating that pursuant to
Mississippi law, “once it has been established that an employee [in
this case a state university security officer] has been fully
compensated [monetarily] for his employment, he is left with no
claim for damages under § 1983 for violation of his property
rights”).
In Piazza, an employee of the Mississippi Forestry Commission
filed suit in chancery court to enjoin his transfer to another
district. The Mississippi Supreme Court, reviewing state law,
including Miss. Code § 25-9-127, held:
It would be a monstrous disservice to the taxpayers of
this state for any court to hold that when a state agency
has determined it is to the best interest of that agency
to transfer an employee, it still must get the employee’s
consent. . . . A statewide agency with employees
scattered in every part of the state, and obligations
imposed by law manifestly must be vested with the
authority to designate where its employees work.
9
Id. at 1249-50. Thus, the court concluded that the plaintiff had
no right to a hearing regarding the transfer, or regarding any loss
of noneconomic benefits of his prior job. Id. at 1250.
Lollar does not complain that her reassignment from the
position of Director, Psychology Department, to Director,
Psychological Support, Community Services, caused a loss in any
economic benefit. Neither does she allege an employment contract
that guaranteed her assignment to specific job duties and
responsibilities. In short, she has failed to show the deprivation
of a property interest under Mississippi law. Thus, because Lollar
has failed to show that Baker’s decision to reassign her resulted
in a deprivation of any constitutionally protected right, Baker is
entitled to qualified immunity from suit based on this section 1983
claim.
As we have earlier noted, Lollar also alleges that Baker
violated her Fourteenth Amendment due process rights by failing to
consider her for the position of Bureau Director. It is difficult
to understand the basis for this due process claim. To the extent
that we are able to discern from Lollar’s complaint and appellate
brief her particular claim, she must be asserting that she had a
recognized property interest, under Mississippi law, in the
position of Bureau Director. We further take her complaint to be
that the failure of Baker to consider her for that position
10
resulted in a denial of a promotion to the position. In any event,
Lollar has failed to show how she has any sort of a property
interest in a job she has never held. Baker is therefore entitled
to immunity from suit based on this section 1983 claim.
Thus, the order of the district court granting Lollar’s motion
to lift the stay of discovery as to these due process claims is
reversed, and these claims must be dismissed.
III
The next question we address is whether section 1983 provides
Lollar with a remedy against Baker for her actions that Lollar
alleges violated the Rehabilitation Act. The Rehabilitation Act
prohibits recipients of federal financial assistance from
discriminating against disabled, but otherwise qualified
individuals. See Kapche v. City of San Antonio, 176 F.3d 840, 844
n.27 (5th Cir. 1999). To enforce its provision, the Act provides
for suit against “any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794 (West 1999). Here it is
clear that SMRC--not Baker--is the program recipient of the federal
financial assistance. Consequently, Lollar cannot sue Baker,
individually, under the Act.4 See, e.g., Clanton v. Orleans Parish
4
Lollar argues that independently of her section 1983 claims,
section 794 of the Rehabilitation Act provides her with a cause of
action against Baker in her individual capacity. Lollar cites to
our holdings in Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988)
and McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d
11
Sch. Bd., 649 F.2d 1084 (5th Cir. 1981)(holding that a supervisor
who implemented a maternity leave policy that violated the terms of
title VII could not be held individually liability under the Act);
Grant v. Lone Star Co., 21 F.3d 649, (5th Cir. 1994)(holding
“[o]nly ‘employers,’ not individuals acting in their individual
capacity who do not otherwise meet the definition of ‘employers,’
can be liable under title VII”). Lollar, however, seeks to use
section 1983 as a vehicle to reach Baker individually, as a person,
who under color of law, has subjected Lollar to the deprivation of
rights under the Rehabilitation Act. See supra note 2. Our
circuit has not had occasion to resolve whether a state employee
who alleges a violation of the Rehabilitation Act may bring an
action under section 1983 against an individual state actor in lieu
of, or in addition to, an action against the employing agency under
the Rehabilitation Act. Thus, this is a question of first
impression in our circuit.
As a general rule of statutory construction, a statute that
affords a remedy for specific wrongs, and which is comprehensive
enough to embrace subjects that may fall within the ambit of a
general statute, should prevail over the general statute as a
vehicle for enforcing those specific statutory rights. See, e.g.,
850 (5th Cir. 1993) to support this contention. Neither Brennan,
nor McGregor, however, decided whether section 794 provided a cause
of action against the defendants in their individual capacities.
12
Resolution Trust Corp. v. Miramon, 22 F.3d 1357, 1362 n.7 (5th Cir.
1994)(citations omitted); Chemetron Corp. v. Business Funds, Inc.,
682 F.2d 1149, 1364 n.51 (5th Cir. 1982), judgment vacated, 460
U.S. 1007, 103 S.Ct. 1245, 75 L.Ed.2d 476 (1983)(quoting Montague
v. Electronic Corp. of America, 76 F.Supp. 933, 936 (S.D.N.Y.
1948). Furthermore, a comprehensive remedial scheme for the
enforcement of a statutory right creates a presumption that
Congress intended to foreclose resort to more general remedial
schemes to vindicate that right. See Middlesex County Sewerage
Auth. v. National Sea Clammers Ass’n., 453 U.S. 1, 20, 101 S.Ct.
2615, 2626, 69 L.Ed.2d 435 (1981).5 Within the Rehabilitation Act,
Congress has provided a specific comprehensive internal enforcement
5
In Middlesex, the Supreme Court addressed whether Congress,
in providing comprehensive remedial schemes in two federal
statutes, intended to “preserve the § 1983 right of action” to
enforce those rights. Middlesex, 453 U.S. at 20. The Court held:
“When the remedial devices provided in a particular Act are
sufficiently comprehensive, they may suffice to demonstrate
congressional intent to preclude the remedy of suit under § 1983.”
Id. at 19-20. The Court supported this conclusion by citing
Justice Stewart’s dissenting opinion in Chapman v. Houston Welfare
Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979)
stating: “[W]hen ‘a state official is alleged to have violated a
federal statute which provides its own comprehensive enforcement
scheme, the requirements of that enforcement procedure may not be
bypassed by bringing suit directly under § 1983.’” Middlesex, 453
U.S. at 20 (quoting Chapman, 441 U.S. at 673 n.2). Thus, the Court
concluded “that the existence of these express remedies
demonstrates not only that Congress intended to foreclose implied
private actions but also that it intended to supplant any remedy
that otherwise would be available under § 1983.” Id. at 20-21
(citing Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 1474, 64
L.Ed.2d 15 (1980)).
13
mechanism to protect the rights of the disabled who are employed by
recipients of federal funds. See 29 U.S.C. § 794(a) (West 1999).6
Thus, we will assume that Congress intended to foreclose resort to
the more general enforcement provisions of section 1983 to
vindicate the rights created by the Rehabilitation Act. See also
Veal v. Memorial Hosp., 894 F.Supp. 448, 452-455 (M.D. Ga.
1995)(discussing this general rule of statutory construction in the
context of an attempt to vindicate the statutory rights created by
Rehabilitation Act by resorting to section 1983).
In rejecting section 1983 as an enforcement mechanism for
rights found in the Rehabilitation Act, we join the Eleventh
Circuit. In Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th
Cir. 1997), the Eleventh Circuit reasoned that
both the Rehabilitation Act and the ADA provide
extensive, comprehensive remedial frameworks that address
6
Title 29 section 794(a) of the United States Code provides:
The remedies, procedures, and rights set forth in section
717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),
including the application of section 706(f) through
706(k) (42 U.S.C. 2000e-5(f)-(k)), shall be available,
with respect to any complaint under section 791 of this
title, to any employee or applicant for employment
aggrieved by the final disposition of such complaint, or
by the failure to take final action on such complaint.
In fashioning an equitable or affirmative action remedy
under such section, a court may take into account the
reasonableness of the cost of any necessary work place
accommodation, and the availability of alternatives
therefore or other appropriate relief order to achieve an
equitable and appropriate remedy.
29 U.S.C. § 794(a)(West 1999).
14
every aspect of [a plaintiff’s claim] under section 1983.
To permit a plaintiff to sue both under the substantive
statutes that set forth detailed administrative avenue of
redress as well as section 1983 would be duplicative at
best; in effect such a holding would provide the
plaintiff with two bites at precisely the same apple. We
conclude that a plaintiff may not maintain a section 1983
action in lieu of--or in addition to--a Rehabilitation
Act or ADA cause of action if the only alleged
deprivation is of the employee’s rights created by the
Rehabilitation Act and the ADA.
Holbrook, 112 F.3d at 1531; see also, Alsbrook v. City of Maumelle,
184 F.3d 999, 1010-11 (8th Cir. 1999)(stating “the ADA’s
comprehensive remedial scheme bars [the plaintiff’s] section 1983
claims against the commissioners in their individual capacities”).
In sum, because the Rehabilitation Act by its express terms
provides comprehensive enforcement and remedial measures for
violations of its provisions, we hold that section 1983 cannot be
used as an alternative method for the enforcement of those rights.
Consequently, Baker is entitled to qualified immunity from suit
under section 1983 for this claim.
IV
To conclude, we hold that under Mississippi law, Lollar does
not have a legally recognizable property interest in either the
non-economic duties and responsibilities of her job, or in a job
she had never held. Lollar has therefore failed to overcome
Baker’s assertion of qualified immunity with respect to her due
process claims based on her reassignment and failure to promote
15
claims. Further, we hold that section 1983 does not provide a
remedy for alleged violations of the Rehabilitation Act.
Consequently Baker has immunity from suit on this claim. Thus, the
order of the district court allowing discovery is REVERSED and the
case is REMANDED for an entry of judgment of dismissal of all
claims against Baker in her individual capacity, and for such
further proceedings with respect to the other parties as may be
appropriate.
REVERSED and REMANDED.
16