Peggy A. Davis v. Village of Decatur ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2459
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Peggy A. Davis; Pamela R. Nelsen, *
*
Appellants, *
*
v. * Appeal from the United States
* District Court for the District
Village of Decatur, a Political * of Nebraska.
Subdivision; Lance Anderson, *
Individually; Sharon Huffman, * [UNPUBLISHED]
Individually; Howard Storm, *
Individually, *
*
Appellees. *
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Submitted: January 13, 2003
Filed: January 23, 2003
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Before LOKEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Peggy A. Davis served as Village Clerk for the Village of Decatur (the Village)
from 1978 until the Board of Trustees (Board) voted not to reappoint her in February
1999. Pamela R. Nelsen served as Deputy Clerk from 1979 until she also was
terminated in February 1999. After the Board denied their requests for grievance
hearings, Davis and Nelsen sued the Village and the trustees individually, claiming
loss of a property right without due process in violation of 42 U.S.C. § 1983 (2000).
The district court* granted summary judgment in favor of the Village and the trustees
on Davis’s claim. Because Nelsen did not hold an appointed position, the district
court did not grant the Village summary judgment against Nelsen. Davis appealed
prematurely, and the appeal was dismissed for lack of jurisdiction because Nelsen’s
claim remained pending. Davis v. Village of Decatur, No. 01-1437, 2001 WL
1269958 (8th Cir. Oct. 24, 2001). After the appeal was dismissed, Nelsen moved for
summary judgment. Another judge** denied Nelsen’s motion for summary judgment
and granted summary judgment to the Village against Nelsen. Davis and Nelsen now
appeal. Having reviewed the record and the briefs de novo and considered the facts
and all reasonable inferences that can be drawn from them in the light most favorable
to Davis and Nelsen, we affirm. See Booker v. City of St. Louis, 309 F.3d 464, 467
(8th Cir. 2002).
We reject Davis’s contention that she was hired, not appointed, because under
Nebraska law, Village Clerk positions are appointments that automatically expire
each year. See Neb. Rev. Stat. Ann. § 17-208 (Michie 1995); Suverkrubbe v. Village
of Fort Calhoun, 256 N.W. 47, 48-49 (Neb. 1934). In addition, the Board voted
annually to reappoint Davis from 1995-1999. We also reject Davis’s contention that
she was conferred property rights to her position by the Village of Decatur Personnel
Policies and Procedures Manual, 1990 (the Manual). The Manual specifically states
it does not apply to appointed positions. Accordingly, Davis had no legitimate claim
of entitlement to continued employment and no protectable property interest in her
position. Tautfest v. City of Lincoln, 742 F.2d 477, 480 (8th Cir. 1984). Because
Davis did not have a protectable property interest in her position, she cannot state a
*
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
**
The Honorable Kathleen Jaudzemis, United States Magistrate Judge for the
District of Nebraska, sitting by consent of the parties under 28 U.S.C. § 636(c).
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claim for deprivation of due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538 (1985).
We agree with the district court that Nelsen was an at-will employee. Although
state law does not specify that Nelsen’s position as Deputy Clerk is an annual
appointed position, the Decatur Municipal Code § 1-201 provided that the Village
Board of Trustees may appoint whatever other officials the Board deems necessary,
and the appointed officials serve at the pleasure of the Board. Nelsen’s final one-year
appointment expired on January 9, 1999. Because Nelsen chose to remain at her job
after the expiration of her contract for employment, she became an at-will employee.
Johnston v. Panhandle Coop. Ass’n, 408 N.W.2d 261, 266 (Neb. 1987). In Nebraska,
at-will employees may be discharged at any time unless there is a constitutional,
statutory, or contractual reason prohibiting discharge. Malone v. Am. Bus. Info., 634
N.W.2d 788, 790 (Neb. 2001).
Nelsen argues the Manual conferred a protectable property interest on her and
required that she receive due process procedural protections upon discharge. We
disagree. Because the Manual was not a sufficiently definite offer to change the
status of Nelsen’s at-will employment, the Manual did not create a contractual
limitation on the Board’s ability to discharge Nelsen. Walpus v. Milwaukee Elec.
Tool Corp., 532 N.W.2d 316, 322-23 (Neb. 1995). Likewise, Nelsen had no right to
procedural due process in the form of a grievance hearing. Although granting Nelsen
and Davis a grievance hearing as requested might have eliminated the need for this
protracted litigation, Nelsen had no procedural due process right to a grievance
hearing because she lacked a property interest in continued employment. Tautfest,
742 F.2d at 480.
Davis and Nelsen do not challenge the district court’s decision that the trustees
are absolutely immune from suit for their legislative acts. See Bogan v. Scott-Harris,
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523 U.S. 44, 49 (1998). Thus, we need not address the issue. Gunn v. United States
Dep’t of Agriculture, 118 F.3d 1233, 1239 n.5 (8th Cir. 1997).
We affirm the district court’s grants of summary judgment. See 8th Cir. R.
47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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