Whims v. Harbaugh ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HOWARD WHIMS,
Plaintiff-Appellant,
v.
CARL R. HARBAUGH, individually
and as Sheriff of Frederick County,
No. 95-2336
Maryland; MITCHELL L. HOSE,
Director of Personnel of Frederick
County; FREDERICK COUNTY BOARD
OF COMMISSIONERS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-94-1166-B)
Argued: July 8, 1996
Decided: April 14, 1998
Before RUSSELL* and WIDENER, Circuit Judges, and HALL,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
COUNSEL
ARGUED: Willie James Mahone, Frederick, Maryland, for Appel-
lant. Kevin Bock Karpinski, ALLEN, JOHNSON, ALEXANDER &
KARP, Baltimore, Maryland, for Appellees. ON BRIEF: Daniel
Karp, ALLEN, JOHNSON, ALEXANDER & KARP, Baltimore,
Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Plaintiff, Howard Whims, appeals a grant of summary judgment in
the District of Maryland for defendants, Carl Harbaugh, Martin Hose,
and the Frederick County Board of Commissioners, as to plaintiff's
complaint alleging wrongful termination of his employment with the
Frederick County Sheriff's Department and a denial of procedural due
process. We affirm.
I.
Whims became employed as a deputy sheriff with the Frederick
County Sheriff's Department in 1970. He subsequently served until
a newly elected sheriff, Carl Harbaugh, terminated his employment
on May 3, 1991. At that time he was serving in the position of Chief
of Operations.1 The only notice Whims received of his termination
_________________________________________________________________
1 The record indicates some dispute over whether plaintiff was serving
as Chief of Operations or Chief Deputy, a position he had once held, at
the time of his termination. As Chief Deputy, he would have arguably
been entitled to even fewer procedural protections than he would as a
regular sheriff's deputy. For purposes of the motion for summary judg-
ment, however, the parties agreed that plaintiff was not Chief Deputy at
the relevant time.
2
comprised a letter stating simply that his employment had been termi-
nated and that he was being placed on administrative leave until the
termination's effective date. The letter did not suggest a cause for his
termination, and no hearing, either prior or subsequent, was held on
the matter.
Whims later filed suit in district court against Sheriff Harbaugh,
Frederick County Personnel Director Martin Hose, and the Frederick
County Board of Commissioners. In his amended complaint, plaintiff
alleges wrongful discharge and violation of the Accardi doctrine. The
wrongful discharge claim is based both on the substance of plaintiff's
termination and on an asserted denial of procedural rights. The
Accardi claim is grounded on a Supreme Court decision requiring a
federal agency to follow the rules it promulgates. 2 See United States
ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). After an
oral hearing, the district court granted defendants' motion for sum-
mary judgment as to plaintiff's amended complaint.
Plaintiff appeals, contending that the district court erred in holding
that 1) he could be terminated at will because he was not covered by
the termination provisions of the Frederick County Personnel Rules;
2) he was not entitled to be assigned to another available job upon
abolishment of his position as required by the Frederick County Per-
sonnel Rules; and 3) he has not alleged sufficient facts to establish
that his discharge did not comply with the Frederick county Personnel
Rules.
_________________________________________________________________
2 On appeal, plaintiff does not appear to challenge the district court's
determination that application of the Accardi doctrine is not appropriate
in this case. The Supreme Court has ruled that the Accardi doctrine enun-
ciates principles of administrative law rather than constitutional law
binding upon the States. Board of Curators v. Horowitz, 435 U.S. 78, 92
n.8 (1978). The district court thus reasoned that an independent due pro-
cess violation does not occur when a state agency violates its own rules.
Alternatively, the court found that defendants did not violate their own
rules because the personnel rules did not apply to plaintiff anyway. For
the reasons discussed infra in this opinion, we at least agree with this lat-
ter basis for finding Accardi irrelevant and therefore do not address the
first basis.
3
II.
We review summary judgments de novo and view the evidence in
the light most favorable to the nonmoving party. Pittman v. Nelms, 87
F.3d 116, 118 (4th Cir. 1996). Summary judgment is appropriate if
the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genu-
ine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
Plaintiff's appeal focuses on the district court's determination of
his procedural claims. We, however, are of opinion that the district
court decided these issues properly. To maintain a procedural due
process claim, plaintiff must first establish that a protected life, lib-
erty, or property interest is at stake. Mathews v. Eldridge, 424 U.S.
319, 332 (1976). The legitimate expectation of continued employ-
ment, a property interest, is the only potential interest implicated here.
A local government employee who serves at the pleasure of his
employer has no legitimate expectation of continued employment and
thus no property interest. Bishop v. Wood, 426 U.S. 341, 345 (1976),
overruled in part on other ground by Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 540-41 (1985). Plaintiff must therefore
demonstrate that he did not serve solely at his employer's discretion.
Plaintiff argues that Frederick County's personnel rules apply to
his termination, thereby supplying him with an expectation of contin-
ued employment absent action under the procedures prescribed by the
personnel rules. However, Maryland state law provides that "[a]ll
deputy sheriffs, except the chief deputy, are subject to county person-
nel regulations with regard to qualifications for hiring, promotion and
compensation with regard to matters not covered by the Law-
Enforcement Officers' Bill of Rights." Md. Cts. & Jud. Proc. Code
Ann. § 2-309(l)(3). The list of matters covered by the personnel regu-
lations does not include terminations. Furthermore, the same subsec-
tion states that all full-time civilian employees, as opposed to deputy
sheriffs, are subject to the personnel regulations regarding the same
matters but also specifically including "disciplinary actions." In addi-
tion, the Frederick County personnel rules pertaining to disciplinary
actions provide that they apply "[e]xcept as otherwise provided for by
statutes or by resolution." All of this language indicates that the
4
county personnel rules were not meant to apply to deputy sheriffs in
the area of terminations. Thus, we cannot agree with plaintiff's con-
tention that, despite the Maryland statute's clear language, the Freder-
ick County personnel rules apply to his termination.
For similar reasons, we cannot agree that the county's personnel
rules entitled plaintiff to be assigned to another position upon aboli-
tion of his job. Plaintiff argues that under the rules defendants had an
obligation to try to provide him other job opportunities with the Sher-
iff's Department. Again, this is not a matter relating to hiring, promo-
tion, or compensation. Plaintiff, therefore, is not entitled to the rules'
protection.
Because the county's personnel rules do not govern plaintiff's ter-
mination, he is an employee at will and has no legitimate claim to an
expectation of continued employment. Thus, he has not been deprived
of a property interest within the Fourteenth Amendment's procedural
protections. Accordingly, we affirm the district court's grant of sum-
mary judgment for the defendants for the reasons expressed by the
district court in its oral opinion.
AFFIRMED
5