Cummings v. Housing Authority ( 1993 )

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
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
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
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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.
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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
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
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jurisdiction is appropriate.
Reversed and remanded.
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