Frances K. Prince, Appellant, v. Robert E. Bridges, Individually and As Director of Thedepartment of Social Services of the City Ofportsmouth, Virginia, Appellee, 537 F.2d 1269 (4th Cir. 1976)

On April 6, 1973, Frances K. Prince was discharged from her position as Clerical Supervisor for the Food Stamp Division, Department of Social Services, City of Portsmouth, Virginia. She was discharged by Robert Bridges, the Director of the Department who was appointed by and answered to the City Manager. In a letter from Bridges, which was handed to her, the reasons assigned for her dismissal were that she had been acting in an "unprofessional manner" by making "malicious statements" about departmental employees and that her conduct had been determined as bringing discredit to the agency.¹  Mrs. Prince was immediately relieved of her position, given two weeks severance pay and advised of her right to appeal to the State Merit System Council.

In accordance with the applicable provisions of the state merit plan for personnel administration, Mrs. Prince noted an appeal for a hearing before the Council. The hearing was held and the Council recommended that Mrs. Prince be reinstated to her former position but Bridges declined to follow the Council's purely advisory decision and affirmed his original decision with respect to her dismissal.

Subsequently Mrs. Prince initiated this civil action against Bridges, both individually and in his official capacity, under the provisions of 42 U.S.C. §§ 1982, 1983, 1985 and 1986. The thrust of her complaint was that she was deprived of her employment without due process of law in violation of the fourteenth amendment. Following an evidentiary hearing the district judge found that Mrs. Prince was not entitled to any relief and dismissed her complaint.

Mrs. Prince appeals from the district court's dismissal, contending that she was denied due process of law because: (1) her peremptory dismissal without a hearing denied her the opportunity to refute the charges made against her and (2) the merit plan's procedures did not provide an opportunity to have her case heard by a tribunal which could provide her relief for a wrong.

A public employee who is discharged without a hearing is not denied fourteenth amendment due process unless he is thereby deprived of a legitimate "liberty" or "property" interest. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 31 L. Ed. 2d 548 (1972). Although Mrs. Prince argues that she was denied both "liberty" and "property" interests we have reviewed the record and find no deprivation of any interest protected by the fourteenth amendment.

Interpreting its decision in Roth, supra, the Supreme Court has held that in cases concerning dismissal of a public employee, "liberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of an employee." Arnett v. Kennedy, 416 U.S. 134, 157, 94 S. Ct. 1633, 1646, 40 L. Ed. 2d 15 (1974) (emphasis added). Mrs. Prince was not dismissed on an "unsupported charge" without being given the chance to refute the allegations made against her; she was given a full evidentiary hearing²  before the Merit Council on the question of the validity of the charges made by Bridges, and the Council recognized that the reasons given for her discharge were not without some substance.³ 

Furthermore, there is no indication that Mrs. Prince's discharge will stigmatize her or create any other disability that might foreclose future employment. In fact, Bridges informed Mrs. Prince that she was eligible, due to the Merit Council's decision, for other merit plan positions. Under the circumstances, Mrs. Prince's discharge did not deprive her of a "liberty" interest protected by the fourteenth amendment. See Bishop v. Wood, --- U.S. ----, 96 S. Ct. 2074, 48 L. Ed. 2d 684, 44 U.S.L.W. 4820 (1976).

Moreover, we conclude that Mrs. Prince had no legitimate "property" interest in her continued employment. The Supreme Court recognized in Roth,supra, that:

To have a property interest in a benefit (job), a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

408 U.S. at 577, 92 S. Ct. at 2709 (emphasis added). Thus a person may have a protected "property" interest in public employment if contractual or statutory provisions guarantee continued employment. See Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1971). In Arnett v. Kennedy, supra, the Court held that a statutory provision that a federal employee could be discharged only "for cause" was a sufficient "property" interest to invoke the constitutional guarantee of procedural due process.

In the instant case there appears to be no contractual or other arrangement limiting the right of termination of employment. Section 63.1-61 of the Virginia Code provides in substance that the employees of a local public welfare department serve at the pleasure of the local appointing authority, subject only to the provisions of the merit plan. Mrs. Prince alleged in her complaint that Bridges was the local appointing authority, and the district court specifically found that Mrs. Prince served at the pleasure of Bridges. Mrs. Prince held her position in the Department of Social Services of the City of Portsmouth at the will and pleasure of Robert Bridges, subject only to the provisions of the merit plan. Any "property" interest Mrs. Prince would have in continued public employment would necessarily arise out of the statutory protection provided by the merit plan. Thus Mrs. Prince's "property" interest in her continued employment was her right to be discharged in accordance with the statutory procedures provided by the merit plan. A constitutional guarantee of procedural due process arises when a public employee is discharged in violation of the procedural rules designed to protect him. In such a situation he has a legitimate "property" interest to protect. See Arnett v. Kennedy, supra. In the present case, however, the provisions of the merit plan have not been violated and Mrs. Prince has received the protection that the merit plan provides.⁴  Thus, although Mrs. Prince contends that the merit plan itself fails to insure that arbitrary and unjustified terminations can be corrected by the Merit Council,⁵  we hold that she has not been deprived of a "property" interest protected by the fourteenth amendment because she has received all the protection the merit plan provides. As recognized by the Supreme Court in Arnett v. Kennedy : "Here the property interest which (the discharged employee) had in his employment was itself conditioned by the procedural limitations which accompanied the grant of that interest." 416 U.S. at 155, 94 S. Ct. at 1645.

Public employees serving at the will and pleasure of a public agency or authorized officer thereof, are subject to summary discharge with or without cause, so long as such discharge is not in retribution for an exercise of some constitutionally protected right. See Hodgin v. Noland, 435 F.2d 859 (4 Cir. 1970), cert. denied, 408 U.S. 942, 92 S. Ct. 2846, 33 L. Ed. 2d 766 (1972); Brown v. Hirst, 443 F.2d 899 (4 Cir. 1971), cert. denied, 404 U.S. 1040, 92 S. Ct. 720, 30 L. Ed. 2d 732 (1972), aff'g 322 F. Supp. 236 (W.D. Va. 1971). Since Mrs. Prince failed to establish that her discharge was either in violation of some constitutionally protected right or in retribution for the exercise of a constitutional right, she is entitled to no relief. Accordingly the judgment of the district court will be affirmed.

Affirmed.