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No. 94-3764WM

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Lydia Marlene Pace, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Western

Judith K. Moriarty, * District of Missouri.

individually and in her *

official capacity; James Kolb, *

individually and in his *

official capacity, *

*

Appellees. *

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Submitted: November 16, 1995

 Filed: May 10, 1996

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Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit

Judge, and FAGG, Circuit Judge.

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FAGG, Circuit Judge.

While Judith K. Moriarty was the Missouri Secretary of State and

James Kolb was her Executive Deputy, Moriarty and Kolb (collectively the

officials) terminated Lydia Marlene Pace from a clerical position in the

Secretary of State's office. At the time of Pace's termination, the

Secretary of State's office had not adopted any procedures allowing

employees to seek review of termination decisions, and the officials did

not give Pace a hearing or notice of the reasons for her termination.

Contending the officials violated her procedural due process rights, Pace

brought this 42 U.S.C. § 1983 action. Pace sought damages from the

officials in their individual capacities, and requested equitable relief.

The district court concluded Pace's claim failed as a matter of law and

granted the officials summary judgment. Pace
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appeals. We affirm in part, and reverse and remand in part.

To show she was entitled to due process before termination, Pace must

show she had a property interest in her job, that is, a legitimate claim

of entitlement to continued employment. Board of Regents v. Roth, 408 U.S.

564, 577 (1972); Batra v. Board of Regents, 79 F.3d 717, 720 (8th Cir.

1996). Pace had a property interest if she could only be fired for good

cause, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985),

and Pace contends the officials needed good cause to terminate her under

Chapter 36 of the Missouri statutes, see Mo. Rev. Stat. §§ 36.010-36.510

(1994). Section 36.390.5 provides that regular employees of merit agencies

have the right to appeal terminations to the state Personnel Advisory Board

(PAB), and the PAB should reinstate employees who were not terminated for

good cause. Sections 36.390.7 and .8 require nonmerit agencies to adopt

the same appeal procedures or "procedures substantially similar to those

provided for merit employees." Id. § 36.390.8. Pace asserts the Missouri

Secretary of State's office is a nonmerit agency under sections 36.390.7

and .8, and the statutes gave her the right not to be terminated without

cause.

The district court rejected Pace's due process claim on the grounds

that the Secretary of State's office was not an agency within the meaning

of sections 36.390.7 and .8. On appeal, Pace contends the district court

misinterpreted Missouri law, and we agree. After the district court's

decision, the Missouri Court of Appeals ruled sections 36.390.7 and .8

apply to the Secretary of State's office. Laws v. Secretary of State, 895

S.W.2d 43, 48 (Mo. Ct. App. 1995). Nevertheless, the officials urge us to

affirm the district court's judgment on alternate grounds, and we may

affirm on any basis supported by the record. White v. Moulder, 30 F.3d 80,

82 (8th Cir. 1994), cert. denied, 115 S. Ct. 738 (1995).

The officials argue that even if sections 36.390.7 and .8
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apply to the Secretary of State's office, the statutes did not give Pace

a property interest in continued employment. Unlike Pace, the officials

do not believe the statutes give nonmerit employees the right to be

terminated only for cause. Instead, the officials argue the statutes only

give nonmerit employees certain procedural rights. A statutory right to

receive review procedures does not itself create a property interest. Stow

v. Cochran, 819 F.2d 864, 866 (8th Cir. 1987); see Bishop v. Wood, 426 U.S.

341, 345, 347 (1976). To give employees a property interest and a right

to due process, a statute must create a legitimate expectation of continued

employment, not merely an expectation of review of terminations. See

Bishop, 426 U.S. at 345; Stow, 819 F.2d at 867. The Missouri courts have

not yet decided whether sections 36.390.7 and .8 prohibit the termination

of nonmerit employees without cause or whether the statutes simply provide

nonmerit employees an opportunity to be heard, and the statutory language

is imprecise. Contrary to the officials' view, we did not resolve this

issue in Hartley v. Fine, 780 F.2d 1383 (8th Cir. 1985), because we

rejected the due process claim in Hartley on the grounds that the plaintiff

was a policymaking employee not covered by sections 36.390.7 and .8. Id.

at 1386 & n.3. We think the district court should address the unresolved

property interest question in the first instance.

Because Pace's due process claim hinges on an unsettled question of

statutory construction, Pace did not have a clearly established right to

receive due process before her termination, and the officials are entitled

to qualified immunity on Pace's claim for damages. See Schleck v. Ramsey

County, 939 F.2d 638, 641 (8th Cir. 1991). On the other hand, qualified

immunity does not shield the officials from Pace's claim for reinstatement

or other equitable remedies. Grantham v. Trickey, 21 F.3d 289, 295 (8th

Cir. 1994). Accordingly, we remand Pace's request for equitable relief.

If the district court concludes Pace had a property interest in her job,

then the district court should decide whether there were review procedures

available to Pace that were sufficient
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to satisfy due process. See Demming v. Housing & Redev. Auth., 66 F.3d

950, 953 (8th Cir. 1995); Kennedy v. Robb, 547 F.2d 408, 415 (8th Cir.

1976), cert. denied, 431 U.S. 959 (1977). 

We affirm the summary judgment for the officials on Pace's claim for

damages, and remand Pace's claim for equitable relief for further

proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.