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“The Stripper and the Gambling Police Officer” sounds like the makings of a made-for-TV movie. Instead, these combustible elements mixed in the recent 8th U.S. Circuit Court of Appeals decision, Eddings v. City Hot Springs, 323 F.3d 596 (8th Cir. 2003). Jeff Eddings was a police officer in Hot Springs, Arkansas. His wife, Susan Eddings, was a stripper at the “Playmates Club.” When their careers intersected, they were both in trouble. In April 2001, the Police Department’s Internal Affairs Board began an investigation into Mr. Eddings’ use of a “gambling device” at the Playmates Club. Apparently Mr. Eddings did well on a particular night, as he received a cash prize from the bartender. It was not clear whether this occurred while Mr. Eddings was on duty. VIOLATION OF STATE LAW Not surprisingly, Mr. Eddings’ gambling violated state law, as well as “multiple written policies of the Hot Spring Police Department.” While he eventually admitted his actions, he had previously lied to the investigators and had failed a polygraph test. Additionally, Mr. Eddings had previously been investigated for having informed his wife of a pending raid of the Playmates Club. As it turned out, on the night of the raid, Mrs. Eddings stayed home, while the other dancers were arrested. All of this led to Mr. Eddings’ termination. Not one to just “take his medicine and go home,” Mr. Eddings appealed his termination to the Civil Service Commission, before which he was given the opportunity to present witnesses and his attorneys were permitted to cross-examine witnesses. The Commission upheld the termination. CONSTITUTIONAL CLAIMS Both Mr. and Mrs. Eddings then brought numerous claims in federal court under 42 U.S.C. � 1983 based on alleged violations of their constitutional rights. Specifically, Mr. Eddings claimed that his due process rights under the 14th Amendment had been violated with respect to his property interest in his job and liberty interest in his “good name.” Mrs. Eddings claimed that her First Amendment rights of free speech had been violated by the fact that police officers other than her husband came to the Playmates Club to watch her perform, which “chilled her ability to sell dances and drinks, thereby reducing her income.” Mrs. Eddings eventually left the Playmates Club to begin dancing at a similar club in Memphis, Tenn. Mr. Eddings also asserted constitutional claims — he claimed that the Department denied him his procedural due process rights by depriving him of a pre-termination hearing or a “name-clearing hearing.” The district court dismissed all claims and the Eddings appealed. In order to determine whether an employee has a property interest in continued employment, federal courts look to state law. Of course, only employees of “state actors” are entitled to due process rights with respect to their employment. NO ALTERATION OF AT-WILL EMPLOYMENT In Arkansas, an employee is considered to be “at-will” unless the employment is for a fixed term or unless an employee handbook contains “an expressed provision” against termination except for cause. Mr. Eddings had no specific term of employment and the Hot Springs Police Department Policy and Procedures Manual contained no requirement of termination only “for cause.” The Policy and Procedures Manual did provide, however, “an absolute right to due process prior to the imposition of a disciplinary action.” The court found that this did not change the at-will nature of his employment and, therefore, Mr. Eddings had no “protected interest in continued employment.” Because Mr. Eddings had no property interest in his continued employment, it was unnecessary for the court to address whether he had been afforded due process with respect to his termination. With respect to the claim that he had been deprived of a protected liberty interest in his “good name, reputation, honor, or integrity,” Mr. Eddings needed to present evidence that public officials had made untrue and stigmatizing statements about him to the public. While there were vague references to newspaper articles and speculation that the information must have been leaked by the chief of police, Mr. Eddings was unable to identify the allegedly damaging articles and presented no evidence that his Chief had made any statements to the public regarding his termination. Again, the court affirmed summary judgment in favor of Hot Springs. The final claim was Mrs. Eddings’ claim for infringement of her First Amendment rights through a chilling police presence as the Playmates Club and through her husband’s allegedly retaliatory termination. Assuming that Mrs. Eddings’ dancing was protected by the First Amendment, the district court found that Mrs. Eddings had provided no evidence that the police presence had actually affected her freedom of speech. She presented no evidence to “particularly describe changes in her income. Moreover, while she claimed that the presence of her husband’s co-workers was responsible for a drop in her income, her deposition testimony revealed that other dancers, and not police officers, had informed customers of her marriage to a police officer.” As such, the court found her alleged injury to be hypothetical, at best. Further, the court found that Mrs. Eddings lacked standing to claim that her First Amendment rights had been violated by her husband’s termination. The case principally illustrates the importance of ensuring that the employee handbook does not alter the at-will nature of employment — either in creating a property interest in employment for government employees, or in creating a contract of employment for private employees. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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