August 17, 1994.
Susan Williams Reeves, Birmingham, AL, David Blankenship, Huntsville, AL, for appellant.
Gerald R. Weber, Jr., ACLU of Georgia, Atlanta, GA, for amicus curiae — ACLU of Georgia.
Joe R. Whatley, Jr., Sam Heldman, Cooper, Mitch, Crawford, Kuykendall Whatley, John C. Falkenberry, Birmingham, AL, for appellees.
Michael J. Bowers, Carol A. Cosgrove, Office of Atty. Gen., Atlanta, GA, for amicus curiae — State of Ga.
J. Lewis Sapp, Stanford G. Wilson, R. Read Gignilliat, William D. Deveney, Walter O. Lambeth, Jr., Atlanta, GA, for amicus curiae — Association County Commissioners of Ga., and Ga. Municipal Assn.
Neal D. Bowen, Office of Atty. Gen., Kissimee, FL, for amicus curiae — Osceola County, Fla.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.
EDMONDSON, Circuit Judge:
Principles of qualified immunity govern this case. The controversy arises from the discharge, without a hearing, of plaintiff from state employment. In the district court, defendants, in their individual capacities, were granted judgment as a matter of law under Fed.R.Civ.Pro. 50(a). We affirm the judgments.
In June 1986, defendants — state university officials — were deciding what steps to take to discharge Albert Lassiter from his employment with Alabama A M University (the "University"). Lassiter asked for a hearing. But defendants fired Lassiter without offering him a hearing.
Lassiter was entitled under the Federal Constitution to no procedural due process unless, under state law, he had a legitimate expectation of continued employment which rose to the level of a property right. Whitfield v. Finn, 731 F.2d 1506, 1507-08 (11th Cir. 1984) (citing Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). Two documents have been advanced by Lassiter as possible sources of such a property right: his employment contract and a University policy manual. No one disputes the wording of these documents. The parties do disagree on the significance and meaning of the documents. A copy of the contract and pertinent manual excerpts are appended to this opinion.
Lassiter sued defendants in their individual capacities (and otherwise) under several theories. At trial, the district court, among other things, granted defendants judgment on the grounds of qualified immunity. The issue in this case is whether defendants were due qualified immunity on Lassiter's claim that his termination deprived him of a property right without due process of law.
For additional facts about this case, see Lassiter v. Covington, 861 F.2d 680 (11th Cir. 1988) ( Lassiter I), and Lassiter v. Alabama A M Univ., 3 F.3d 1482 (11th Cir. 1993) ( Lassiter II), vacated, reh'g, en banc, granted, 19 F.3d 1370 (11th Cir. 1994).
QUALIFIED IMMUNITY PRINCIPLES
No new rules need to be announced to decide this case. But, for emphasis, we restate principles which do govern qualified immunity cases:
I. Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (no discovery if immunity question can end case); see also Hunter v. Bryant, 502 U.S. 224, ___, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) ("we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation") (citations omitted). The qualified immunity doctrine means that government agents are not always required to err on the side of caution. Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984).
II. That qualified immunity protects government actors is the usual rule; only in exceptional cases will government actors have no shield against claims made against them in their individual capacities. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738 (officials "generally are shielded from liability for civil damages"); Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir. 1989) ("The Harlow decision sets up a bright-line test that is a powerful constraint on causes of action under section 1983."); Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323-24 (11th Cir. 1989) (when "no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where [First Amendment case law] would lead to the inevitable conclusion that the [act taken against] the employee was unlawful"). Unless a government agent's act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. See Malley v. Briggs, 475 U.S. 335, 341-43, 106 S.Ct. 1092, 1096-97, 89 L.Ed.2d 271 (1986). Because qualified immunity shields government actors in all but exceptional cases, courts should think long and hard before stripping defendants of immunity.
While qualified immunity almost always applies in damage claims against government actors in their individual capacities, the defense is a narrow one, leaving plaintiffs other avenues of relief. Plaintiffs remain free (subject to Eleventh Amendment constraints) to seek money damages against government actors in their official capacity. Plaintiffs may also seek injunctive relief.
III. For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that "what he is doing" violates federal law. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Qualified immunity is a doctrine that focuses on the actual, on the specific, on the details of concrete cases.
The most common error we encounter, as a reviewing court, occurs on this point: courts must not permit plaintiffs to discharge their burden by referring to general rules and to the violation of abstract "rights." See Anderson, 483 U.S. at 639-41, 107 S.Ct. at 3038-39 (even though the "general right [defendant] was alleged to have violated — the right to be free from warrantless searches of one's home unless the searching officers have probable cause and there are exigent circumstances — was clearly established," lower court should have "consider[ed] the argument that it was not clearly established that the circumstances with which [defendant] was confronted did not constitute probable cause and exigent circumstances") (emphasis added); see also Barts, 865 F.2d at 1190 (stating "clearly established" question at specific, factually defined, level).
Once the qualified immunity defense is raised, plaintiffs bear the burden of showing that the federal "rights" allegedly violated were "clearly established." Barts, 865 F.2d at 1190 (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)).
"General propositions have little to do with the concept of qualified immunity." Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir. 1987). "If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994); accord Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994). "The line is not to be found in abstractions — to act reasonably, to act with probable cause, and so forth — but in studying how these abstractions have been applied in concrete circumstances." Barts, 865 F.2d at 1194. And, as the en banc court recently accepted:
We leave open the possibility that occasionally the words of a federal statute or federal constitutional provision will be specific enough to establish the law applicable to particular circumstances clearly and to overcome qualified immunity even in the absence of case law.
When considering whether the law applicable to certain facts is clearly established, the facts of cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar. See, e.g., Edwards v. Gilbert, 867 F.2d 1271, 1277 (11th Cir. 1989). Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.
Adams v. St. Lucie County Sheriff's Dept., 962 F.2d, 1563, 1573, 1575 (11th Cir. 1992), (Edmondson, J., dissenting) (emphasis added), approved en banc, 998 F.2d 923 (11th Cir. 1993). For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.
IV. Because qualified immunity is a doctrine of practical application to real-life situations, courts judge the acts of defendant government officials against the law and facts at the time defendants acted, not by hindsight, based on later events. See Hunter, 502 U.S. at ___, 112 S.Ct. at 537 ("the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be construed five years after the fact").
V. The subjective intent of government actor defendants plays no part in qualified immunity analysis. Anderson, 483 U.S. at 641, 107 S.Ct. at 3040 (despite that courts may inquire into "information possessed" by defendant, the defendant's "subjective beliefs . . . are irrelevant"); Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct. 2806, 2810, 86 L.Ed.2d 411 (1985) (in Harlow, "this Court purged qualified immunity doctrine of its subjective components"); Hansen v. Soldenwagner, 19 F.3d 573, 578 (11th Cir. 1994) ("[t]he Supreme Court in Harlow, staked a new path for immunity law by abandoning the subjective element of `good faith' immunity in favor of an objective test"). Objective legal reasonableness is the touchstone.
VI. A decision on qualified immunity is separate and distinct from the merits of the case — a principle illustrated by the Supreme Court's willingness to treat the denial of qualified immunity at summary judgment as an appealable collateral order. Mitchell, 472 U.S. at 527-29, 105 S.Ct. at 2816-17 ("it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated"); Green v. Brantley, 941 F.2d 1146, 1151-52 (11th Cir. 1991) (en banc) ("whether the defendant official is entitled to qualified immunity on a particular damage claim is also conceptually distinct from the substantive merits" for purposes of collateral review doctrine). Immunity contemplates exemption from liability that would otherwise exist on the merits.
APPLICATION OF PRINCIPLES
In June 1986, defendants faced a decision: would they grant plaintiff a hearing before deciding finally to dismiss him? The law was clearly established at the time that, if Lassiter had a legitimate expectation of continued employment, he was due the hearing. But this general proposition is, in reality, a useless bit of abstract information, giving no practical instruction to defendants at the time and, in turn, having almost nothing to do with whether qualified immunity would protect defendants' acts. See Anderson, 483 U.S. at 639-41, 107 S.Ct. at 3038-39; see also Barts, 865 F.2d at 1190 (plaintiffs may not rely on "general, conclusory allegations of some constitutional violation, [n]or [may they rely on] broad legal truisms").
No one disputes what defendants in this case did: they fired Lassiter without a hearing, in the face of a contract and policy manual — the words of which are undisputed. The historical or operative facts to which we apply the principles of qualified immunity were set on the date Lassiter was dismissed. Because in June 1986, when defendants acted, it was not clearly established as a matter of law in Alabama that either the contract's words or the manual's words or both would support a property right for Lassiter, the law was also not clearly established that Lassiter was, when defendants acted, due a hearing.
The contract has been ruled ambiguous as a matter of law by the Lassiter I panel, 861 F.2d at 683. We agree. "An ambiguity exists where a term is reasonably subject to more than one interpretation." Cannon v. State Farm Mut. Auto. Ins. Co., 590 So.2d 191, 194 (Ala. 1991). By definition, then, a reasonable university official could not know whether firing Lassiter, without a hearing, under these circumstances violated the due process clause. Put differently, the landscape of pre-existing law would have compelled no definite conclusion from reasonable persons in defendants' positions, given the ambiguous contract before them.
Defendants correctly argue that it was in no way established — much less clearly so — that in June 1986 a policy manual or employee handbook featuring language contained in the University's manual would alter Alabama's at-will presumption (for example, the manual did not expressly establish a for-cause termination standard). The implied-contract-from-personnel-manual theory on which Lassiter relies was not validated until the decision in Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala. 1987), which held, in 1987 (that is, after Lassiter had been fired), that "language contained in a handbook can be sufficient to constitute an offer to create a binding unilateral contract," depending on how specific the language is. Id. at 735 (emphasis added). When defendants acted, reasonable people in defendants' positions could not have known that the particular language used in the University Manual (or any manual, for that matter), gave Lassiter an expectation of continued employment. See id., at 740-52 (Maddox, J., dissenting) (arguing that majority overruled two earlier decisions which refused to find that employment manuals altered at-will presumption).
Nor does Lassiter's citation to Belcher v. Jefferson County Bd. of Educ., 474 So.2d 1063 (Ala. 1985), indicate that Alabama law "clearly established" that the manual provided him with a continued expectation of employment. For example, Belcher involved a high school teacher who was fired in contravention of a county board of education "teacher evaluation policy." Belcher could not "clearly establish" Lassiter's alleged due process rights in this case because Belcher — involving a county school board whose powers and duties are controlled by statutes different from those controlling University officers — dealt with facts and circumstances that were not "materially similar" to the facts and circumstances facing defendants. See Adams, 962 F.2d at 1575. So, the Belcher decision — regardless of what cases were cited in the court's opinion — could never dictate that the manual in this case gave Lassiter, a University officer, the necessary expectation of employment.
In addition, the record reveals no extrinsic facts about the formation of the contract which, if known by reasonable persons in defendants' positions in June 1986, would have resolved the ambiguities about the duration of Lassiter's contract. Even if one credits Lassiter's trial testimony, including his understanding and his intent for the contract, Alabama law in 1986 was not clearly established that the import of such evidentiary facts would be to oblige a judge to conclude as a matter of law that the contract's words had the legal effect that Lassiter advanced.
Alabama's law of contract construction has a strong objective element, see Lilley v. Gonzales, 417 So.2d 161, 163 (Ala. 1982) ("the law of contracts is premised upon an objective rather than a subjective manifestation of intent"); thus, the parties' testimony about intent might not clearly control the case's outcome. See, e.g., Sealing Equip. Prod. Co. v. Velarde, ___ So.2d ___ (Ala. 1994) (must look at all circumstances surrounding formation of contract) (quoting Alabama Pattern Jury Instructions), accord, Russellville Flower Craft, Inc. v. Searcy, 452 So.2d 478 (Ala. 1984). And, more than one inference about the contract's duration can be drawn from plaintiff's evidence in this case. Cf. Hall v. Integon Life Ins. Co., 454 So.2d 1338, 1342 (Ala. 1984) (judgment by judge inappropriate when more than one interpretation of ambiguous contract may be drawn from facts).
Therefore, reasonable university officers, even if fully informed in June 1986 of Lassiter's intent and understandings of the pertinent contract and the rest of plaintiff's trial evidence on the circumstances surrounding the making of the contract, would not have known in June 1986 whether Lassiter had the kind of property right that would demand due process protection. In other words, in June 1986 the duration of the contract (that is, the legal effect of the words used) was unknown and unknowable.
The line between lawful conduct and unlawful conduct is often vague and thin. The essence of qualified immunity is that it is unfair — and, as a matter of public policy, unwise — to impose personal liability on government officers unless the officers had advance notice that what they were doing was unlawful. Pre-existing law must supply this notice; the unlawfulness must be obvious, considering the circumstances confronting the officers. No one — no matter how learned in the law — could have known in 1986 whether Lassiter was due, under federal law, a hearing or not. So, defendants are entitled to qualified immunity.
Even if some legal expert would have then concluded that a hearing was required, defendants would still be due qualified immunity if reasonable university officials would not have known about it. Davis, 468 U.S. at 196 n. 13, 104 S.Ct. at 3020 n. 13 ("unfair and impracticable" to hold public officials to the same level of knowledge as trained lawyers); Barts, 865 F.2d at 1193 ("[w]e cannot realistically expect that reasonable police officers know more than reasonable judges about the law"); Adams, 962 F.2d at 1575 n. 4, 1576 (same).
AFFIRMED in part, REVERSED in part, and REMANDED.
This opinion discusses only defendants' qualified immunity on Lassiter's procedural due process claims. On all other issues in this appeal, we adopt the conclusions reached by the panel in Lassiter II, 3 F.3d 1482.
ALABAMA AGRICULTURAL AND MECHANICAL UNIVERSITY NORMAL, ALABAMA 35762
OFFICIAL ANNOUNCEMENT OF APPOINTMENT AND CONTRACTMay 1 85 [*]September 30 85 annual 51,000.00 12 June 1 85
[Page 1 of 3]
ALABAMA A M UNIVERSITY POLICY MANUALIV:01:06 OCT 1 1980 (s) R.D. Morrison
[Page 2 of 3]
Grievance ProcedureStep Two.
[Page 3 of 3]COMPLAINTS
[Page 1 of 1]
ALABAMA A M UNIVERSITY POLICY MANUALIV:01:15 OCT 1 1980 (s) R.D. Morrison
DEFINITIONSFULL-TIME POSITION: PART-TIME POSITION: PERMANENT POSITION: TEMPORARY POSITION:
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ALABAMA A M UNIVERSITY POLICY MANUALIV:01:21 OCT 1 1980 (s) R.D. Morrison Voluntary Involuntary
[Page 2 of 9]Notice and Pay. CLEARANCE CLEARANCE PROCEDURES Property Accounts and Loaned Items.
[Page 3 of 9]Notice. Pay. DISMISSAL
[Page 4 of 9]Unused Annual Leave. Final Payment.
[Page 5 of 9]Discharge Review Committee. Unsatisfactory Performance after Probation.
[Page 6 of 9]Counselling During Probation. Probationary Performance Appraisal.
[Page 7 of 9]Performance Appraisal and Counselling. Warning and Probation.
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SEPARATION AND NOTICE PROCEDURES
REFER TO POLICY NO: IV:01:21DISCHARGE
[Page 9 of 9]NOTICE TO: Mr. Albert E. Lassiter Vice President for Business and Finance The President of the University is appointing you as designated above, subject to approval of the University Board of Trustees, and governed by policies, procedures, regulations and standards recorded in official University policies and procedures publications, for the period from , 19 to , 19, or for such portion of the period as your services are found satisfactory, and as the finances of the University permit at an salary of $, payable in monthly payments, effective , 19 If this is a part-time instructional appointment, it is contingent upon a per class enrollment of at least ____ students, and will be consummated with the President's signature when the class(es) make(s). If you accept the appointment, sign all four copies of this notice and contract between you and the University. Return all four copies (within 10 days). Your copy will be returned to you when the President has signed. If you will not accept the appointment, please note the fact on all forms and return them immediately to the For Alabama A. M. University April 18, 1985 By: (s) Douglas Covington ______________________________________ _____________________________ (Date of Announcement) (President) BUDGET OR SOURCE OF FUNDS: _________________________________________________ ____________________________________________________________________________ [*] This appointment and contract, which commence on May 15, 1985 and extend through September 30, 1985 (the end of the current fiscal year), would be extended, through our mutual agreement, on October 1, 1985. ____________________________________________________________________________ The President Alabama A. M. University I hereby accept the above stipulated appointment and will assume my duties on the date the appointment becomes effective. I promise to give sixty days' notice if I seek release from this agreement. April 25, 1985 Signed (s) Albert E. Lassiter __________________________________ _________________________________ (Date of Acceptance) POLICY NO.: DATE: SUPERSEDES POLICY NO.: _________ DATED: __________ SUBJECT: Grievances and Complaints APPROVED: Dr. R.D. Morrison, President Alabama A M University provides all its employees an opportunity to seek redress of Grievances and Complaints through either an informal or formal procedure. The Director of Personnel can assist any employee encountering difficulty. Grievance(s): Redress sought by an employee where the matter(s) does not relate to race, sex, national origin, religion or handicap, or Complaint(s): Redress sought by an employee(s) that relates to sex, race, national origin, religion or handicap. Whenever a group of people are required to work together for an extended period of time, misunderstandings as to application of University Policy will most certainly occur. In order to insure prompt and constructive handling of grievances, employees are requested to follow this procedure. Step One is the Informal Process. 1. Within three (3) working days of the misunderstanding, consult with your supervisor concerning the matter. This will often lead to a satisfactory solution. If mutual agreement does not occur, you have five (5) working days to proceed with the second step of the grievance procedure. 2. Within five (5) working days of your supervisor's answer, put your grievance in writing and send it to the Office of Personnel. Describe the problem, say what you wish to have done, and keep a copy of it. After receiving your written grievance, Personnel will arrange for a meeting of the interested parties within seven (7) to ten (10) working days. Within seven (7) working days after this, the person to whom your immediate supervisor reports will give you a written answer to your grievance. If mutual agreement does not occur at this time, you will then have five (5) working days to notify Personnel that you are initiating the third step of the grievance procedure. 3. Your final appeal must again be in writing, again stating your grievance and listing the findings of Steps (1) and (2). This appeal should be forwarded to the Director of Personnel. After a review for procedural due process and policy compliance, arrangements will then be made to set up a Grievance Review Committee within seven calendar days after the appeal is received. This committee will be appointed by the President. You have the option of challenging one of the persons on the Grievance Review Committee without giving any reason. Your supervisor will have the same right. The Committee will be provided with all available information on the case and will hold a hearing within five (5) working days. A representative of Personnel will be present to assist and advise but will have no voice in the committee's ruling. You may have a fellow employee with you at this hearing. This is strictly an administrative proceeding and legal counsel is not permitted. The committee will make a written recommendation to the President's Office within seven (7) working days after reviewing the grievance. Within seven (7) working days of receipt of the Committee's recommendations you will receive a final decision from the President's Office. Complaints shall be classified as redress sought by an employee that relates to sex, race, national origin or handicap. Every effort should be made to resolve the complaint at the lowest possible level and if resolution cannot be reached, the procedure enumerated in the grievance procedure should be followed as outlined for Faculty, Staff and Students in the University's Grievance and Complaint Procedure. POLICY NO.: DATE: SUPERSEDES POLICY NO.: _________ DATED: __________ SUBJECT: Types of Employment APPROVED: Dr. R.D. Morrison, President A position requiring work through a normal forty (40) hour work week. A position requiring work on a fixed or flexible schedule of less than 40 hours per week. An employee in a part-time position is paid according to the number of hours worked, unless otherwise stipulated, part-time appointments are considered to be temporary. An authorized full-time or part-time position deemed as necessary on a continuing and scheduled basis. A full-time or part-time position authorized for a maximum of six months. Where a person is employed to complete a task in an unspecified time frame. Persons being employed under this classification are employed in such instances as illness or injury of an employee or where a position was deserted and a replacement is needed immediately. POLICY NO.: DATE: SUPERSEDES POLICY NO.: _________ DATED: __________ SUBJECT: Separation and Notice APPROVED: Dr. R.D. Morrison, President Alabama A M University provides its employees full protection and benefits of the various laws and regulations governing the termination of employment. It acts responsibility to ensure that both individual and University interests are fully safeguarded. DEFINITIONS There are two categories of separation — Voluntary and Involuntary. 1.0 a. Resignation: Voluntary relinquishment of one's job. b. Leave of Absence (LOA): a form of resignation allowing a professional employee to pursue other activity for a period greater than 90 days. LOA incorporates a mutual understanding that the University and the employee agree. 2.0 a. Severance — involuntary removal from employment because (1) the employee's position is annulled through reduction in force or reorganization, and an equivalent vacancy does not exist: or (b) the employee is unable to meet attendance requirements of the job because of ill health. employee's behavior constitutes actual or potential injury to the department of University, he immediately recommends dismissal through channels to the President. 3.0 The President may consider two courses of action: a. Accept the supervisor's recommendation and authorizes immediate dismissal; or b. Appoint a Dismissal Review which will act in the same manner as the Discharge Review Committee described above. 4.0 Dismissals are made without advance notice. Salary entitlements ends as of the date of dismissal. The Director of Personnel conducts a separation exit interview with each voluntarily separating employee during the week before separation to elicit reasons for separation (OP FORM 013A) and obtains exit information from immediate supervisor on (OP FORM 013B). The Director of Personnel must be notified two weeks prior to the termination date of employment. The Office of Personnel will provide a Termination Clearance Form (OP FORM 012) to the separating employee one week before the date of termination. The separating employee is responsible for returning all University property (charged equipment, library books, keys, credit cards, identification cards, and the like), and for obtaining activity, no further probation is required. The employee is not placed on notice under these circumstances but is discharged. 3.0 The appropriate approval authority — the President, supervising Vice President, will furnish 60 days notice for discharge to exempt employees (a copy will be forwarded to the Director of Personnel). The discharge of a non-exempt employee if authorized, will provide such employee one month's notice. Employees are expected to work during the notice period. 4.0 Regular pay will continue during the notice period, provided that (a) an employee does not begin employment with another employer during the notice period, or (b) if for any unauthorized reason the employee fails to report to work during the notice period. Categories (a) and (b) require documentation of the supervisor and must be on file in the Office of Personnel and a copy given or sent to the employee via registered mail. 1.0 Supervisors are responsible for recommending actions. All recommendations for dismissal shall be reviewed by one higher level of authority. 2.0 Supervisors and higher authorities will thoroughly investigate instances of misconduct and will weigh carefully and objectively at what point misconduct constitutes actual or potential injury to the University. If the supervisor determines that an written clearance from the payroll section, and the Director of the Library, Administrative Services, Computer Services, and other areas depicted on the clearance form. When clearance has been completed, the Director of Personnel will authorize the Business Office to make final payment, less an outstanding obligation to the University. The employee is responsible for items that are not returned, and settlement must be made prior to issuance of the final pay check. Each employee will receive payment of unused annual leave accumulated up to a maximum of 240 hours. The final pay check, including any annual leave and less any outstanding obligations to the University will be mailed or directly deposited according to the university's pay schedule. e. If requested by the employee, a Discharge Review Committee of three employees appointed by the President will be charged to review in an objective and impartial manner all discharge actions referred to it, and to advise the President of an appropriate course of action. It will inform the employee that the Committee has received for its review a recommendation for discharge. The Committee will investigate the facts and will be provided with pertinent documents by the Director of Personnel. Within five (5) working days of the receipt of all documents, the Committee will review and report its findings to the President and to the Director of Personnel. After considering the findings and recommendations of the Committee, the President may reject the recommendation for discharge, authorize discharge, or take other appropriate action. The President will record his decision in writing for placement in the employee's personnel file. f. An employee who successfully completes probation but lapse into the same or other unsatisfactory performance may be discharged without further notice or may be placed on probation a second time. If the employee successfully completes this second probation but subsequently performs unsatisfactorily or engages in the same unacceptable 3.0 A definition of a probationary period not shorter than one month and no longer than three months in which corrective action is expected. 4.0 A clear description of the conditions to be satisfied during the probationary period which will result in removal of the probationary status. 5.0 A statement that separation will result if the employee is unsuccessful in meeting the specified objectives. c. During the period covered by the probation, employees will have opportunities to discuss their status and conduct with their supervisors and the Director of Personnel. d. At the end of the probation period, the supervisor will complete and submit (through channels) to the Director of Personnel a formal appraisal recommending either (1) removal from probation, or (2) discharge for unsatisfactory performance. The Director of Personnel will review the appraisal, make appropriate recommendations, and forward the appraisal and recommendation to the appropriate authority for action. If discharge is recommended, the Director of Personnel will prepare and forward to the employee written notification and of such recommendation. This notification informs the employee that, if he/she wishes, he/she may request the President to refer the action to the Discharge Review Committee. He/she must request such referral within five (5) working days of receipt of notification of recommended discharge. a. Performance appraisal by a supervisor is a continuous process. Formal performance appraisal is required annually; exceptionally good or poor performance should be discussed with the employee whenever it occurs. Counselling an employee regarding performance that is below expected standards is relied upon to resolve most transient problems of poor performance without formal action. b. In some cases, counseling is not effective. One critical event, or a series of marginal or unsatisfactory examples of substandard work, may persuade the supervisor that formal action is required. In such cases, the supervisor places the employee on probation. To establish probation, the supervisor informs the employee in writing that the performance is unsatisfactory. This formal warning is confidential; the supervisor provides a copy to the Director of Personnel for retention in the employee's file. The memorandum must contain the following. 1.0 Specific identification of how the employee's performance is not meeting the standards and objectives set for the job. 2.0 A summary of previous communications in which instances of unsatisfactory performance were conveyed to or discussed with the employee (prerequisite). 1.0 Resignations are to be submitted in writing indicating the reasons for resignations and the desired effective date of separation. Letters of resignation by exempt employees are addressed to the University President and forwarded through supervisory channels to the Director of Personnel. Letters of resignation by non-exempt employees are addressed to the appropriate Vice President with a copy forwarded to the Director of Personnel. Resignations of exempt employees are to be submitted at least two months in advance and non-exempt employees at least one month in advance. Salary continues through the last day worked, and unless extenuating circumstances exist, this process will be followed to the letter. 2.0 Supervisors are responsible for recommending to the appropriate authority severance actions within their activities. 3.0 The President, Vice President, Dean or Director will furnish notice to employees and provide a copy to the Director of Personnel. The names of employees who are severed without cause will be placed on a re-employment list for one year, and will be considered for re-employment in order of length of time on the list when appropriate openings occur. 1.0 Supervisors are responsible for recommending to the appropriate Vice President or President discharge actions within their activities. 2.0 The following procedures must be carefully followed, fully documented, and executed by the designated authority: b. Discharge — involuntary removal from employment because of failure to perform designated duties or meet prescribed standards, including behavioral patterns such as repeated tardiness or unauthorized absence or adverse attitude toward University policies, supervisors, fellow employees, or work assignments. c. Dismissal — involuntary removal from employment because of dishonest behavior, or other forms of misconduct involving violation of law or University policy. A legal notice is defined as: A written declaration that an employee is being terminated or a written declaration from an employee that he/she is resigning. Both should conform to established time frames of two (2) weeks notice. [*] Appendix B includes pertinent sections of Plaintiff's Exhibit 9, taken from the University's policy manual. Policy No. IV:01:21 ("Separation and Notice"), appears in the order provided in plaintiff's exhibit. We believe, however, that this section was intended to be paginated — and can only be understood — in the following order: 1, 9, 8, 7, 6, 5, 3, 2, 4.
For purposes of qualified immunity, the relevant facts are the facts known to the decision-maker. In this case, Lassiter has pointed to no genuine issue of material fact as to what the decision-maker knew. In my judgment, the decision-maker did not know facts which clearly indicated that the contract had been extended by mutual agreement. Thus, the decision-maker did not know facts which clearly indicated that Lassiter had a property interest. Accordingly, I concur in and join the opinion by Judge Edmondson for the court.
Lassiter apparently testified that he understood the contract to be a 12 month contract; he implies that the decision-maker would have shared that understanding. However, the contract language itself is clear that the contract extended from May 1, 1985, to September 30, 1985, and that it had to be extended by mutual agreement. Lassiter has pointed to no evidence of which I am aware that the decision-maker had knowledge of facts clearly indicating an extension by mutual agreement.
I concur in the result only.
I agree with the majority opinion insofar as it concludes that the district court did not err in granting the defendants qualified immunity on the issue of whether the personnel policy manual created a property interest. I do not agree, however, with the majority's resolution of the due process claim based upon a property interest created by the contract. Therefore, I respectfully dissent on that issue.
The contract between Lassiter and the university has been determined as a matter of law to be ambiguous on the issue of its duration. Lassiter v. Covington, 861 F.2d 680, 683 (11th Cir. 1988) ( Lassiter I). The majority opinion contends that this means that, "[b]y definition, then, a reasonable university official could not know whether firing Lassiter, without a hearing, under these circumstances violated the due process clause. Put differently, the landscape of pre-existing law would have compelled no definite conclusion from reasonable persons in defendants' positions, given the ambiguous contract before them." In my view, this analysis obscures the issue of when qualified immunity is appropriate and reflects a misunderstanding of the significance of the legal conclusion that a contract is ambiguous.
Established law in this circuit has recognized that where the legal norms at issue are clearly established, critical factual disputes preclude the grant of qualified immunity. See Swint v. City of Wadley, Ala., 5 F.3d 1435, 1442 (11th Cir. 1993), modified on other grounds, 11 F.3d 1030 (11th Cir. 1994); Rich v. Dollar, 841 F.2d 1158, 1564-65 (11th Cir. 1988). The majority opinion violates this rule by affirming a grant of qualified immunity despite a factual dispute on the critical issue in this case. The Lassiter II panel noted:
Qualified immunity turns on ambiguity in the law, not ambiguity in the contract. If the law is clear, but there are issues of fact concerning the contract, then a defendant is not immune from having a jury resolve the factual issues concerning the contract.
In 1986, the law was clear that an employee with a contractual expectation of continued employment had a property interest in that employment. Board of Regents v. Roth, 408 U.S. 564, 577-78, 92 S.Ct. 2701, 2709-10, 33 L.Ed.2d 548 (1972).
3 F.3d 1482, 1486 (11th Cir. 1993), vacated, reh'g en banc granted, 19 F.3d 1370 (11th Cir. 1994).
The determination that the contract in this case is ambiguous is not tantamount to a conclusion that a reasonable university official, possessing the information known to the defendants, would have thought that Lassiter was not under contract on the date that he was fired. Rather, it is simply a finding that the normal methods of interpreting a contract are inadequate. In an unambiguous contract the words of the agreement alone control its interpretation. In such cases, contractual rights are interpreted by the court based on written words of the agreement. Parol evidence usually is inadmissable. In an ambiguous contract, however, the words alone cannot solely determine the substance of the actual agreement between the parties. See Miles College, Inc. v. Oliver, 382 So.2d 510, 511 (Ala. 1980). Alabama law clearly provides that once a contract has been found, as a matter of law, to be ambiguous on its face, the meaning of the contract becomes a question of fact to be determined by the jury. McDonald v. U.S. Die Casting and Dev. Co., 585 So.2d 853, 855 (Ala. 1991). Alabama law dictates that,
[s]hould the trial court determine a contract to be ambiguous, yet not void for uncertainty, the question of the true meaning of the contract becomes an issue for the jury to decide. To aid the jury in this determination, evidence of facts and circumstances aliunde (from another source) or in pais (outside the record of the contract) may be introduced to aid the jury in its clarification of the terms of the contract; it then becomes the province of the jury to draw inferences and ascertain those facts from which the true meaning of the contract's terms can be determined.
Miles, 382 So.2d at 511 (citations omitted) quoted in Middleton v. Dan River, Inc., 834 F.2d 903, 911 (11th Cir. 1987). A ruling that a contract is ambiguous does not mean that the parties did not have an agreed upon understanding of the contract terms, or that they failed to reach an agreement on the issue left ambiguous in the contract. It merely means that extrinsic evidence must be consulted to adequately identify the rights conferred upon the parties by the contract. Thus, it does not follow that because the contract is ambiguous a reasonable university official in the appellees' position could have concluded that there was no contract that extended past September 1985.
Crucial to the resolution of this claim is a determination of the dates of the contract. The text of the contract itself does not answer this question. The facts and circumstances surrounding the formation of the contract showed that prior to working for the university, Lassiter was employed by the state of Mississippi as the director of Public Accounts. Lassiter was recruited by the university to leave that job and accept a position as vice president for Business and Finance at Alabama A M. Lassiter presented evidence that during contract negotiations he was told that the university could not commit to a contract that extended beyond the fiscal year, which ended on September 30. He testified, however, that Dr. Covington, the president of the university, advised him that the contract would be automatically renewed in October 1985 and would run through September 1986. Dr. Covington testified that he and Lassiter had agreed only to a five month contract, from May until September, and that the extension referred to in the contract was to occur through their mutual agreement at a later point. Dr. Covington further testified that no such agreement to extend the contract was ever reached and therefore Lassiter worked for the university without a contract after September 1985. Because the resolution of this factual issue was critical to the determination of Lassiter's claim, the trial court erred in not sending the factual question of the duration of the contract to the jury.
Lassiter was terminated in June 1986 without a hearing. If he had no contract on this date, he had no property interest in continued employment and therefore a hearing was not required. If, on the other hand, as he contends, he was under contract until September 30, 1986, then his termination would have occurred within the contract period and under clearly established law he was entitled to a hearing.
The contract between Lassiter and the university provided that:
for the period from May 1, 1985 to [*]September 30, 1985, or for such portion of the period as your services are found satisfactory, and as the finances of the University permit at an annual salary $51,000, payable in 12 monthly payments, effective June 1, 1985. . . .
[*] This appointment and contract, which commence on May 15, 1985 and extend through September 30, 1985 (the end of the current fiscal year), would be extended through our mutual agreement, on October 1, 1985.
I therefore would reverse the district court's grant of qualified immunity on the due process claim grounded in the contract and remand for a jury resolution of the factual dispute.