*1 regulations. evident from the of the adjustment structure vocational required would be regulations are designed perform reflect the him accounting positions, clerk greater people vocational difficulties close the Commissioner by erred failing to make age, retirement through do so any findings regarding whether Kerns’1skills year gradations five recognize pro- highly marketable. The absence of Renner, gressive difficulties.” findings F.2d such possibility forecloses the 1424-25. The Tenth recognizes also the Commissioner’s supported decision was regulation’s that the structure “reflects that by substantial evidence on record as a older, grows whole, a claimant age pro- as will it constitutes reversible error. gressively acquired such, offset his by skills so that As we need not address Kerns’ addi the time he is close to age, retirement unless arguments. tional Accordingly, we reverse marketable, highly his skills are may he judgment of the district court with in Emory, any employment.” be able obtain structions to remand to the Commissioner to F.2d at 1094. determine whether Kerns’ highly skills are marketable. Pineault, agreed, the First Circuit hold- “[wjithout ing that finding that claimant’s Judgment vacated and remanded to the ‘highly skills were opposed marketable’ as to Commissioner for further consideration in just ‘transferable,’ the vocational disadvan- with opinion. accord tage of age might claimant’s advanced not be by offset the existence of transferable skills.”
Pineault,
Finally,
enth Circuit Secretary that “the recognized
has nevertheless
that there is a
relationship
age
direct
between
and the like-
HILL,
J.D.
Former member of the Pulaski
employment
lihood of
... and that the ad-
County
Office,
County
Sheriff's
Pulaski
vantage
having
acquired (through past
Regional
Facility, Appellee,
Detention
employment)
training may
certain
or
.skills
longer
no
offset the
disadvantage
vocational
Tom,
age
as a claimant
older.”
becomes
Randy JOHNSON, Sheriff, Pulaski Coun
Thus,
ing upon court, and to this that 20 ble, County Member of the Pulaski 404.1563(d) § C.F.R. requires something Office, Sheriff's Professional Standards than more a mere determination of transfer- Unit; Barkhurst, Michael Member of ability approaching for claimants retirement County Office; the Pulaski Sheriff's age. Hughes, Lou Member of the Pulaski County Office, Appellants. Sheriff's III. Conclusion No. 98-1431EA. Kerns was age close to retirement at the Therefore, hearing. time of his the Commis- Appeals, United States Court of required sioner was to find that Kerns’ skills Eighth Circuit. highly marketable before he could find Sept. Submitted 1998. Kerns had deny transferable skills and him benefits. Neither the ALJ nor the Com- Decided Nov. 1998. missioner considered marketability Rehearing Suggestion Rehearing skills; they Kerns’ found them transferable En Banc Denied Dec. by considering only the level vocational adjustment required.
We are satisfied under the authorities dis
cussed that the ALJ and the Commissioner
applied wrong legal Even if standard.
Kerns’ skills were transferable because little *2 AR, Rock, Hurlbut, ar- Little P.
Bruce appellee. gued, for Rock, Little Fuqua, North Mack David AR, appellant. for argued, McMILLIAN, HEANEY, and Before FAGG, Judges. Circuit FAGG, Judge. de photograph of beaten
After the
super
the desk of
disappeared from
tainee
County
the Pulaski-
vising
J.D.
officer
office undertook
Sheriffs
course,
Hill refused
answer
During its
and failed
incident
questions about the
polygraph examination. Nev
up for a
show
ertheless,
placed
officer said he had
a fellow
pres
in Hill’s
photograph on Hill’s désk
disposed of the
ence,
he had
another
said
Following the
direction.
at Hill’s
photograph
revealing Hill’s official
investigation
thorough
misconduct, the
terminated
em
Sheriff
Hill’s
brought
this civil
ployment.
then
and other office
Sheriff
action
his Fifth
alleging
violated
members
process
The
and due
summary
moved
and officers
Sheriff
both
merits and
issue
judgment on
court de
immunity.
district
qualified
motion,
the Sheriff and officers
nied the
interlocutory appeal, see
brought
Collins
(8th
591, 595
Bellinghausen, 153 F.3d
Cir.
(denial
1998)
summary judg
of motion
immunity is imme
qualified
ment on basis of
diately appealable). We reverse.
the district court’s sum-
reviewing
When
decision, we examine the rec-
mary judgment
oppos-
to the
light
favorable
ord
most
reasonable inferences
ing party
all
and draw
Ianni,
Burnham
party’s
favor. See
Cir.1997).
(8th
“Qualified
officials
government
from
shields
suit unless their conduct
McCorkle,
violates a
1073-74
statutory
Cir.1982).
constitutional or
right
Given
important
“the
public inter-
of which
a reasonable
would have
est
in securing from public employees an
known.” Id.
accounting
of their
trust[,][p]ublic em-
*3
ployees may constitutionally be discharged
Hill asserts the Sheriff violated his
for refusing to answer potentially incrimina-
Fifth
rights by
Amendment
discharging him
ting questions concerning their official duties
for refusing to
questions
answer
at his last
they
if
have
been required
to surrender
meeting with the Sheriff and for remaining
their constitutional immunity.”
Lefkowitz
silent rather than obeying the Sheriffs order
Cunningham,
801, 806,
431 U.S.
97 S.Ct.
to
polygraph
take a
examination. Hill as
2132,
(1977).
“The [Fifth]
only
Amendment not
part of the Sheriffs internal administrative
protects the
against
individual
being
investigation,
involun
not the criminal investigation.
tarily called as a
against
witness
himself
ain
Before
meeting,
the
Hill received a “Notice
prosecution
criminal
but
privileges
also
him of Consideration
Action,”
of Disciplinary
stat
not to
questions
answer official
put
him
ing
to
“suspension, demotion, or termination is
any other proceeding,
criminal,
civil or
being
for
considered.”
transcript
The
last
the
informal,
mal or
where
answers might
the
meeting shows the Sheriff said it
was
incriminate him in
proceed
future criminal
“administrative hearing,
... not a criminal
ings.”
v. Turley,
70, 77,
414 U.S.
hearing,” and that it concerned “disciplinary
Lefkowitz
316,
(1973).
94 S.Ct.
472 that is inference reasonable poly- for the As Gulden, at 1074. F.2d polygraph examination meeting and Hill examination, undisputed it is graph administrative internal the Sheriffs part Hill discharging up, and show not even did evidence show- presented not vio- all did at participate January of the the nature right against ing self- Amendment late his Fifth polygraph test Gulden, appear F.2d request See incrimination. hearing February 6 day and the following 1075-76. events, in to these ambiguous. Prior sufficient sum, submit Hill failed to both Mi- been January, Hill had early jury could a reasonable from facts Garrity warnings. The Garrity randa compelled to waive was that he conclude by form before warnings, administered process due rights. Hill’s Fifth *4 Professional meeting with the January 10 on a Fifth depends it fails because claim ap- Unit, they were that indicated Standards attend refuse to a privilege to Amendment meeting. that plicable for protected prop- the basis a as polygraph conduct the Sheriffs
erty interest. Because
Meanwhile,
investigation was
criminal
a
constitu-
clearly
a
established
not violate
did
period.
this entire
during
“ongoing”
a reason-
statutory right of which
or
tional
thought the
deposition that he
in his
stated
known, the Sheriff
have
would
person
able
the
polygraph
the
and
request for
qualified
to
im-
officers are entitled
and the
inves-
part of the criminal
with Johnson
court’s
reverse the district
munity. We thus
light
in
reasonable
Hill’s belief was
tigation.
ground.
on that
summary judgment
of
denial
people
of the same
the fact that some
of
and adminis-
the criminal
with both
involved
dissenting.
HEANEY,
Judge,
commu-
investigations, Hill witnessed
trative
evidence
presented sufficient
in
parties
Because Hill
involved
both
the
between
nication
whether the
question
to
jury
February meeting
a
as
to create
the
6
investigations,
(defendants) violat-
reasonably
officers
and other
Sheriff
who could
the Sheriff
was with
Amendment
clearly
Fifth
the
ed his
both of
expected to oversee
have been
person would
rights
which a reasonable
in his
proceeding
of
that were
investigations
known,
the district
I would affirm
in
have
the
Viewing the evidence
department.
motion for sum-
court’s denial of defendants’
can be no
there
to
light most favorable
qualified
of
im-
judgment on the basis
mary
juror could conclude
that a reasonable
doubt
munity.
respectfully
I
dissent.
meeting were
polygraph test
that
the
continuing criminal
part of the
may
public employees
clear that
The law is
hearing was admin-
assuming that the
Even
constitutionally
discharged for “refus
be
not
istrative,
not
constitutional-
Hill could still
be
prosecu
criminal
expose themselves to
al to
his Fifth
discharged
refusing
to waive
ly
testimony
on
would
tion based
at
answering questions
rights in
Amendment
compulsion, despite their constitu
under
give
meeting.
privilege.”
tional
Uniformed
Men Ass’n.,
Sanita
Inc. v. Commissioner of
with the
disagreement
my
The heart
1917,
280, 283,
tion,
20
S.Ct.
392
88
U.S.
that
in
statement
principally
its
majority lies
(1968);
also Gardner v.
1089
see
L.Ed.2d
affirmatively
immuni-
offer
failure
to
a mere
1913,
Broderick,
273, 279, 88 S.Ct.
U.S.
392
compel
attempt to
impermissible
ty
not an
is
(finding
unconstitutional
1082
20 L.Ed.2d
Sani-
under
a waiver
Uniformed
officer for
to
discharge
police
a
to
analysis,
a
this
Under
tation Men.
privilege).
waive
Fifth
employee for
discharge an
employer could
case,
in the defen
this
reasonable
a
long
as
as
question
refusing to- answer
known of
would
this
position
have
dants’
waiver,
request for a
explicit
was no
there
one occasion Hill
fact that on
right, and the
knew
irrespective whether
Garrity rights shows that
of his
was advised
I
proceeding.
believe
nature of the
rights.
did know of Hill’s
defendants
rights es-
reading of the
Men
majority
tablished
view-
disagree
I
with the
Gardner, 392
is too narrow. See
light most favorable Gardner
in the
ing the evidence
(“Petitioner
any
U.S.
burden is troubling in case still given explicit
where was immu
nity expressed after he concerns about the meeting
nature of the
examination and lawyer asked to have his present. requirement Absent a that the em UNITED America, Appellee, STATES of ployee’s rights clearly communicated, employer such as the Pulaski County v. Office will Sheriffs be free to characterize JONES, Harold Appellant. J. any proceeding compel where seeks to statements as “administrative” after the em America, UNITED Appellee, STATES of fired, ployee has been avoid the v. public employees by laid out the Supreme Court Sanitation Men CASHAW, Appellant. James O. Gardner. America, UNITED Appellee, STATES of Accordingly, that, I would hold ambiguity surrounding poly- the nature of graph meeting test and and since Hill was PALMER, L. Appellant. John
not informed of his rights, de- 97-2176, 97-2177, Nos. 97-2178. show, fendants are unable to as a matter of law, that his discharge did not violate his Appeals, United States Court of clearly established Fifth Amendment Eighth Circuit. Ass’n, See Men Inc. Sanitation, Submitted Jan. Commissioner 1998. (2d Cir.1970) (Uniformed Decided Nov. II) (holding Men discharge of public employee who refused account for his
performance was constitutional where had being “duly refused after options
advised his consequences and the choice.”); Police Confederation of Conlisk, Cir.1973) policemen
(discharging to an- questions
swer in an Internal Affairs Division where were not informed