Stephen L. Upshaw v. METROPOLITAN NASHVILLE AIRPORT AUTHORITY; PAUL REGALADO; and IFTIKHAR AHMAD

The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District*
of Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0792n.06
Filed: October 24, 2006
No. 05-6136
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
STEPHEN L. UPSHAW,
Plaintiff-Appellant,
v.
METROPOLITAN NASHVILLE AIRPORT
AUTHORITY; PAUL REGALADO; and IFTIKHAR
AHMAD,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
)
On Appeal from the United States
District Court for the Middle
District of Tennessee
Before: BOGGS, Chief Judge; MARTIN, Circuit Judge; and OLIVER, District Judge.*
PER CURIAM. Stephen Upshaw, a former employee of the Metropolitan Nashville
Airport Authority (“MNAA”), brought suit for wrongful discharge under state law, and for
deprivation of due process and equal protection of the laws under 42 U.S.C. § 1983 and § 1985.
Upshaw alleges that the elimination of his position as part of an airport reorganization was a “sham”
designed to strip him of his civil-service protections and improperly terminate him without cause.
The district court granted summary judgment in favor of the defendants, and Upshaw now appeals
the dismissal of his § 1983 claim. We affirm the district court’s order.
I

-- 1 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
- 2 -
Pursuant to Tennessee statute, the MNAA is operated by a Board of Commissioners under
its own civil service plan, the Personnel Management Plan (“PMP”), which was adopted under its
bylaws. Tenn. Code Ann. § 42-4-110(a). Tennessee statute mandates that certain provisions will
be included in the PMP, including a provision for “[s]uspensions, demotions or discharge of
employees for cause only with the right of notice and review” and for “[r]eview by the board, or its
designee . . . , at the request of the employee in question and after notice and public hearing of
disciplinary actions, including . . . discharge of any employee.” Id. § 42-4-110(a)(6), (11). The
statute also permits the PMP to make certain positions exempt from the civil-service protections of
the plan. Id. at § 42-4-110(b).
The PMP itself specifies that “[t]he Authority reserves the right and management prerogative
to assign and control its work forces. The President [of the MNAA] shall staff the Authority at the
level which makes appropriate, economical, and effective allocation of work between Authority
employees and independent contract services,” and provides for implementing the statutorily-
permitted exemptions from the plan. Among the provisions dealing with employee rights, the PMP
specifies that “[e]mployees subject to a reduction-in-force will receive notification of such action
at least two weeks prior to the effective date.” Regarding employee disciplinary actions and
terminations, the PMP provides that “[n]o employee shall be the subject of a disciplinary action
without cause,” and specifies rules for disciplinary procedures. In cases involving potential
demotion or discharge, the PMP provides that the hearing be held by the President. The PMP
requires written notification of the hearing’s outcome within ten days, which must advise the
employee of the right to appeal “discharges, demotions and suspensions in excess of five (5) days”

-- 2 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
- 3 -
to the MNAA Board of Commissioners, who are required to hear the appeal within 90 days of the
final decision or refer the matter to an administrative law judge.
In November 2002, roughly a year after initiating a reorganization of the MNAA, President
Paul Regalado hired Iftikhar Ahmad as Vice President in charge of the Planning, Design, and
Construction department (“PDC”), and requested his recommendations for the reorganization of that
department. Among Mr. Ahmad’s recommendations was the elimination of the two Airport
Engineer positions–one of which was held by Upshaw–and the Airport Architect position, and the
creation of several new positions within PDC, including Project Engineer for Construction, which,
unlike the Airport Engineer positions, would require Professional Engineer (“P.E.”) licensing, and
would be exempted from the PMP’s civil-service provisions.
In December 2002, Ahmad met with Upshaw and Al Cope, the other Airport Engineer, to
discuss job performance issues, and presented them with a letter of reprimand; shortly afterwards
Upshaw left work on paid medical leave, on which he remained until his termination. In January
2003, he was informed of the decision to eliminate his position, and was offered a one-year contract
for one of the new Project Engineer positions, on the condition that he obtain a P.E. license during
that period, at MNAA’s expense. After a number of exchanges, Upshaw ultimately declined the
offer, and Mr. Regalado sent him a “Notice of Intent to Terminate pursuant to MNAA’s Personnel
Management Plan,” explaining that he was being terminated because his position had been
eliminated and he had declined the new position. The letter informed Upshaw of his right to appeal
the decision in a hearing before Regalado, which Upshaw requested and received. After the hearing,
Regalado concluded that Upshaw’s termination was based on the elimination of his position as part

-- 3 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
Upshaw asserts in his brief that “[t]his is a section 1983 and 1985(3) case,” but makes no1
further reference to his § 1985 claim, much less develop an argument in support of it. Accordingly,
we deem the § 1985 claim waived. Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005).
- 4 -
of the PDC reorganization. Upshaw approached the MNAA Board of Commissioners and its
chairman to request a hearing on Regalado’s decision, but was informed that he was not entitled to
further appeal.
Upshaw filed an action against MNAA, Mr. Regalado, and Mr. Ahmad, alleging denial of
his due process rights “by terminating him in direct contravention of his rights as a civil service
employee,” in violation of 42 U.S.C. § 1983; conspiracy to deprive him of equal protection under
the law in violation of 42 U.S.C. § 1985; and wrongful discharge under Tennessee law. The district
court granted the defendants’ motion for summary judgment, dismissing the § 1983 and § 1985
claims with prejudice and dismissing the state law claims without prejudice, for lack of jurisdiction.
Upshaw now appeals his § 1983 claim.1
II
This court reviews a grant of summary judgment de novo. Turner v. City of Taylor, 412 F.3d
629, 637 (6th Cir. 2005). In evaluating a grant of summary judgment, “the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

-- 4 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
- 5 -
III
In order to sustain his § 1983 claim for deprivation of due process, Upshaw must establish
that he had a constitutionally protected property interest and that he was deprived of the interest
without adequate process. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972).
This court has observed that “[p]roperty interests do not derive from the Constitution, but rather are
created and defined by ‘existing rules or understandings that stem from independent sources such
as state law . . . .’” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (quoting Roth,
408 U.S. at 577). A civil-service classification system, created under state statute, that provides for
termination only with cause creates such a constitutionally protected property interest. Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
A
The parties do not dispute that Upshaw’s Airport Engineer position was classified under the
MNAA’s PMP, created pursuant to Tennessee statute, and do not appear to dispute that, had Upshaw
been terminated for cause, the property interest thus created would have entitled him to due process.
However, the MNAA claims that, because Upshaw’s position was eliminated as part of a
reorganization of airport personnel, the due process requirements that would apply in a termination
for cause do not apply here. This court has not specifically addressed the extent–if any–of the
process due a classified employee whose position is eliminated. A number of other jurisdictions
have recognized a general “reorganization exception” to civil service-derived due process
requirements, rooted in public policy considerations. See, e.g., Misek v. City of Chicago, 783 F.2d
98, 101 (7th Cir. 1986); Duffy v. Sarault, 892 F.2d 139, 147 (1st Cir. 1995); Hartman v. City of

-- 5 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
- 6 -
Providence, 636 F. Supp. 1395, 1410 (D.R.I. 1986) (collecting cases). Courts have noted, for
example, that where an employee’s termination is unrelated to his job performance, any kind of
process meant to evaluate that performance would be superfluous. Digiacinto v. Harford County,
Md., 818 F. Supp. 903, 906 (D. Md. 1993). Others have noted that requiring due process in the
context of a reorganization would amount to an unreasonable hindrance for government entities
seeking to adapt their staffing needs to changing conditions. See Goldsmith v. Mayor & City Council
of Baltimore, 845 F.2d 61, 65 (4th Cir. 1988). This case, however, does not require us to consider
whether a general reorganization exception permits Upshaw’s termination without due process: the
nature of the specific property right that Upshaw enjoyed in his position did not extend to protection
from elimination of his position in the context of a reorganization.
Although the Airport’s PMP and the state law pursuant to which it was implemented vested
Upshaw with a property interest in his position, its precise nature must be determined by reference
to the instruments that created it. See, e.g., Silberstein, 440 F.3d at 311. Here, the terms of the PMP
and state law do nothing to suggest that Upshaw’s property interest extended beyond protection from
termination for cause without due process. First, state law specifies that “suspensions, demotions
or discharge”–all of which the statute characterizes as “disciplinary actions”–be only for cause, and
only after notice and review. Tenn. Code Ann. § 42-4-110(a)(6), (11). Second, the PMP itself
specifies the responsibility of the President to assign the MNAA’s work force and staff it at the
appropriate level, and provides that “[e]mployees subject to a reduction-in-force will receive
notification of such action at least two weeks prior to the effective date.” The effect of these
provisions is to create a property interest relating specifically to disciplinary actions; in the case of

-- 6 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
- 7 -
termination as a result of reorganization or reduction in force, the PMP establishes no rights beyond
prior notice, receipt of which Upshaw does not dispute. On its face, in other words, the civil service
plan that created Upshaw’s property interest explicitly contemplated the possibility that positions
would be eliminated without necessitating the due process protections that discharge for cause
requires. See Hartman, 636 F. Supp. at 1408-09 (noting that relevant civil-service provisions only
addressed “dismissal,” and thus “at best, [created] a property interest in the job so long as the job
existed.”) To the extent, then, that Upshaw’s position was eliminated as part of a legitimate
reorganization, MNAA’s refusal to entertain an appeal of his pre-termination hearing–which the
PMP required only where the termination was for cause–cannot constitute a denial of due process.
The right to appeal a decision to eliminate a position (even if MNAA offered such a hearing) was
never a part of Upshaw’s property interest.
B
Upshaw contends, however, that the reorganization was a mere “sham,” a pretext designed
to discharge him without the process that should have been due. Upshaw may be correct that a
“sham” reorganization should not protect an employer from fulfilling what would otherwise be its
due process obligation: “To hold otherwise would allow government officials to cry ‘reorganization’
in order to circumvent the constitutional and statutory protections guaranteed . . . employees.”
Misek, 783 F.2d at 101. However, Upshaw has failed to show that the question of whether the
reorganization was a sham involves any genuine issue of material fact. On the contrary, the record
is clear that, on the evidence Upshaw has offered, no reasonable jury could conclude that the
reorganization was mere pretext.

-- 7 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
- 8 -
Upshaw does not dispute that Regalado had begun a restructuring of the MNAA over a year
before his position was eliminated, and that the stated purpose of the reorganization was streamlining
and increased cost-effectiveness. He does not dispute that MNAA could include a P.E. license
among the job requirements for the new Project Engineer for Construction positions, nor that it could
exempt the new positions from civil service classification. His only substantive disputes appear to
concern the reasons for which Regalado claimed MNAA was eliminating his position.
During Upshaw’s pre-termination hearing, Regalado indicated that MNAA wanted to make
the change in order to secure funds more easily for the salaries of the new positions from federal
grant programs, and to eliminate the cost of consultants required by not having licensed engineers
in-house. In an attempt to impeach these assertions, Upshaw offers the deposition testimony of
MNAA’s Chief Financial Officer, Doug Wolfe, that his Airport Engineer position could have been
federally funded, and the testimony of Regalado that, even after the creation of the new Project
Engineer positions, the airport had not eliminated its use of consultants. Thus, Upshaw concludes,
Regalado’s asserted motivations for eliminating his position were merely pretextual. More
generally, Upshaw now claims that the fact that the number of MNAA employees (and PDC
employees in particular) has increased since his termination undermines Regalado’s claim that the
reorganization as a whole was undertaken to streamline operations (though in the proceedings below
he conceded this motivation, Plaintiff’s Response to Defendants’ Statement of Undisputed Material

-- 8 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
Upshaw appears to claim, on appeal, that he was deprived of due process in December 20022
as well as upon his termination in April 2003, insofar as the letter of reprimand was not preceded
by the notice required by the PMP. Upshaw, however, failed to assert this claim in the proceedings
below, and we therefore need not consider it here. Barner v. Pilkington North America, Inc., 399
F.3d 745, 749 (6th Cir. 2005). In any case, it is well established that constitutionally required due
process is not equivalent to the process required by state law, Loudermill, 470 U.S. at 541, and
without a showing that the December 2002 proceeding was part of his discharge, Upshaw cannot
demonstrate that the letter of reprimand amounted to a deprivation of any property interest that
would entitle him to due process.
- 9 -
Facts ¶ 11, JA 91). Finally, Upshaw suggests that his December 2002 letter of reprimand points to
the actual foundation for MNAA’s elimination of his position.2
These assertions do not amount, as a matter of law, to a genuine dispute of material fact
requiring resolution at trial. At most, Upshaw’s assertions serve to cast doubt on the quality of the
reorganization plan–the likelihood that it would achieve the results MNAA claimed to hope for.
Without offering any evidence to provide affirmative support for the notion that MNAA’s
reorganization was merely a bad-faith effort to discharge him, Upshaw cannot prove, on the basis
of this asserted ineffectiveness, that the entire effort was a sham. See, e.g., Mandel v. Allen, 889 F.
Supp. 857, 875 (E.D. Va. 1995) (“Neither federal nor state law prohibits a state from a good faith
effort to conduct its affairs more efficiently, and the state is not required to justify such efforts with
proof that the efficiencies are working.”). Furthermore, the existence of a prior disciplinary action
against Upshaw, cannot, in itself, serve to prove that the entire process was a subterfuge designed
to eliminate him; “[o]therwise, the paradoxical result would follow that a general reorganization
could be challenged by anyone with a questionable work record (but not by a person whose record
is beyond reproach).” Digiacinto, 818 F. Supp. at 906.

-- 9 of 10 --

No. 05-6136
Upshaw v. MNAA, et al.
- 10 -
Upshaw has offered no evidence to support the notion that MNAA’s decision was “person
directed” rather than “position directed,” beyond the existence of a prior disciplinary action. See
Hartman, 636 F. Supp. at 1410. This does not provide a basis from which a reasonable juror could
conclude that the MNAA’s actions were pretextual; indeed, the fact that MNAA offered Upshaw a
contract for the new Project Engineer position, and offered to pay his licensing expenses, renders
highly implausible the notion that this was all an elaborate ruse to terminate him. In evaluating a
motion for summary judgment, “[t]he mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff,” and the opposing party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Liberty Lobby, 477 U.S. at 252 (quoting Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Upshaw has failed to meet
this burden. Accordingly, the order of the district court is AFFIRMED.

-- 10 of 10 --