859 F.Supp. 1504 (1994)
Martin J. SMITH, Plaintiff,
v.
UPSON COUNTY, GA., et al., Defendants.
Civ. A. 93-242-2-MAC (WDO).
United States District Court, M.D. Georgia, Macon Division.
August 8, 1994.
*1505 *1506 Harlan S. Miller, III, Atlanta, GA, for plaintiff.
Truitt A. Mallory, Thomaston, GA, James R. Morgan, Jr., Winston-Salem, NC, for defendants.

ORDER
OWENS, Chief Judge.
Before the court is defendants' motion for summary judgment. After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court issues the following order.

FACTS
In 1984, plaintiff Martin J. Smith was hired by the Upson County, Georgia Sheriff's Department to work as an undercover investigator. Subsequently, plaintiff was assigned to a multijurisdictional drug task force, a law enforcement organization staffed by officers from various local law enforcement agencies. Captain Dan Greathouse of the Upson County Sheriff's Department was commander of the multijurisdictional drug task force. Captain Greathouse served as plaintiff's immediate supervisor in the task force.
In December 1988, the Upson County Sheriff's Department, along with other county offices, petitioned the Upson County Board of Commissioners to create a civil service system for county employees. On December 30, 1988, the board of commissioners passed a resolution creating a civil service system for Upson County.
On June 28, 1991, defendant Mountain Greene assumed the office of Sheriff of Upson County.[1] Prior to Greene taking office, the deputy sheriffs in the sheriff's department had received overtime pay for hours worked over 171 hours per pay period. However, when Greene took office, he implemented a new policy providing for compensatory time off in lieu of overtime pay. Greene notified the employees of the sheriff's department of the policy change at two meetings held shortly after he took office. No employee of the sheriff's department expressed opposition to the policy change.
In June 1992, plaintiff received information that his supervisor, Captain Dan Greathouse, was involved in illegal wiretapping. Shortly after receiving the information, plaintiff arranged a meeting with agents of the Georgia Bureau of Investigation ("G.B.I."), the F.B.I., and an Assistant United States Attorney to discuss the information. At the meeting, it was decided that an investigation of the allegations was in order. As the investigation concerned allegations against Greathouse, a decision was made not to notify Greathouse of the investigation. Further, plaintiff did not inform Sheriff Greene or Chief Deputy Daniel Kilgore of the investigation or the allegations against Greathouse. Plaintiff did, however, speak with several other officers in the drug task force about the investigation. Subsequently, Captain Greathouse received information that plaintiff was involved in an investigation and that plaintiff was attempting to keep the investigation a secret from Greathouse.
On June 25, 1992, Greathouse called plaintiff on the telephone and asked plaintiff for information regarding plaintiff's investigation. Plaintiff, however, informed Greathouse *1507 that he could not talk about the investigation. The next day, Greathouse called plaintiff into his office and again asked plaintiff for information concerning the investigation. Again, plaintiff refused to discuss the investigation. Greathouse then told plaintiff that he was going to request that plaintiff be transferred out of the drug task force. Accordingly, Greathouse wrote a letter to Sheriff Greene, which stated:
I am requesting that Narcotics Task Force Agent Marty Smith be re-assigned to the Upson County Sheriff's Office. In the recent weeks, Smith has been conducting unauthorized investigations and has deliberately withheld this information from the commander. I feel that Smith does not trust me and I further feel that due to this mistrust, it would be impossible for me to supervise Smith.
Subsequently, a meeting was held involving Sheriff Greene, Chief Deputy Kilgore, Captain Greathouse, and plaintiff. During the meeting, plaintiff accused Greathouse of revealing confidential information to "friends and acquaintances" and of participation in an illegal wiretap. Plaintiff also admitted that he was participating in an investigation of Greathouse's involvement with the alleged wiretap and that the G.B.I. had instructed him to keep the matter quiet. At the conclusion of the meeting, Sheriff Green informed plaintiff that he was being transferred out of the task force and into the investigations division of the sheriff's department. Plaintiff's transfer, however, did not affect his salary, benefits, or classification.
On Friday, March 12, 1993, plaintiff arrived at work with a patch over his right eye. Plaintiff explained to his supervisor that he had been hit in the eye with a hockey stick. However, despite the injury, plaintiff worked a full day. On March 13 or 14, plaintiff's wife telephoned plaintiff's supervisor and informed the supervisor that plaintiff would not be at work on March 15 because of a doctor's appointment to have plaintiff's eye examined. After being examined by the doctor, plaintiff was informed that he had cancer, and that it would be necessary to surgically remove his right eye.
On March 15, 1993, plaintiff's wife informed plaintiff's supervisor that plaintiff would be out of work for six to eight weeks because of eye problems. Plaintiff's wife, however, did not explain to the supervisor the exact nature of plaintiff's medical problem. Plaintiff's supervisor reported this conversation to Chief Deputy Kilgore. On March 30, Kilgore contacted plaintiff and asked plaintiff to provide a doctor's certificate to confirm plaintiff's medical condition.[2] Kilgore also asked plaintiff about a falsified search warrant that had surfaced in a criminal prosecution. Plaintiff denied having any knowledge of the warrant.
After ten days had passed, and Kilgore had received no certificate from plaintiff, Kilgore contacted plaintiff's wife and again requested a doctor's certificate to confirm plaintiff's medical condition. During this same period of time, it was determined that plaintiff was responsible for the false search warrant that Kilgore had questioned plaintiff about on March 30. Instead of securing the signature of a magistrate on the search warrant, plaintiff had signed the warrant himself in an illegible fashion.
On April 16, 1993, Chief Deputy Kilgore served notice on plaintiff that effective April 26, 1993, plaintiff was terminated from his employment with the Upson County Sheriff's Department. Plaintiff was informed that the basis for the discharge was (1) plaintiff's failure to provide a doctor's certificate and (2) forging a magistrate's signature on a search warrant. Kilgore also informed plaintiff of plaintiff's right to respond to the proposed termination within three working days of receipt of the notice. Upon receipt of Kilgore's letter, plaintiff responded to the allegations contained therein. However, after consideration of plaintiff's response, Kilgore informed plaintiff by letter dated April 23, 1993 that the decision to terminate plaintiff would stand. In addition, Kilgore in *1508 formed plaintiff of his right to appeal the decision.
On April 29, 1993, plaintiff requested a hearing concerning the discharge. On Friday, May 14, 1993, plaintiff was informed that a hearing would be held on the following Monday, May 17, 1993. On the morning of the hearing, the County Attorney received a note from plaintiff, which stated: "Your proposed hearing date of May 17, 1993, is in conflict with my calendar. On this date I have an important meeting with officers of the court in Macon." Despite plaintiff's absence, a hearing was held on May 17, 1993, and the hearing officer upheld plaintiff's discharge. At plaintiff's request, a second hearing was held on April 12, 1994, before a different hearing officer. However, the second hearing officer also upheld plaintiff's discharge.
On July 26, 1993, plaintiff filed suit against Upson County, Sheriff Mountain Greene, Chief Deputy Daniel Kilgore, and Captain Dan Greathouse under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., 42 U.S.C. §§ 1983 and 1988, and the First and Fourteenth Amendments to the United States Constitution.[3] On May 25, 1994, defendants filed this motion for summary judgment. Defendants contend that they are entitled to judgment as a matter of law on all of plaintiff's claims. Further, the individual defendants assert that they are entitled to summary judgment on the basis of qualified immunity. On June 2, 1994, plaintiff amended his complaint to include a claim under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. In defendants' reply to plaintiff's response to defendants' motion for summary judgment, defendants also contend that they are entitled to summary judgment on plaintiff's claim under the Americans with Disabilities Act.

DISCUSSION
[T]he plain language of [Federal Rule of Civil Procedure] 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The nonmoving party must put forth more than a "mere `scintilla'" of evidence; "there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." United States v. Metropolitan Petroleum Co., 743 F.Supp. 820, 823 (S.D.Fla.1990). However, "[i]n determining whether a factual issue exists, a court must consider all the evidence in a light most favorable to the non-moving party." Rollins v. Techsouth, Inc., 833 F.2d 1525, 1528 (11th Cir.1987).

I. Fair Labor Standards Act
In his complaint, plaintiff alleges that defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., by failing to pay plaintiff overtime wages for hours worked in excess of 171 hours per work cycle. Defendants, however, contend that "plaintiff's FLSA claim fails as a matter of law because (1) the plaintiff was ... not an `employee' covered by the FLSA; and (2) there was an agreement between Sheriff Greene and the plaintiff such that giving the plaintiff compensatory time off in lieu of overtime did not violate the FLSA." (Def.s' Br. at 2.)

A. Covered Employee
The FLSA defines an "employee" as:
any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an *1509 individual ... who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and ... is selected by the holder of such an office to be a member of his personal staff.
29 U.S.C. § 203(e)(2)(C)(i), (ii) (emphasis added). Defendants contend that plaintiff was not subject to the Upson County Civil Service System and, therefore, not a covered employee within the meaning of the FLSA. Defendants' contention, however, is without merit.
On December 30, 1988, the Upson County Board of Commissioners adopted a resolution "CREATING A SYSTEM OF CIVIL SERVICE FOR EMPLOYEES OF UPSON COUNTY, GEORGIA, OTHER THAN ELECTED OFFICIAL OR PERSONS APPOINTED TO POSITIONS FOR A SPECIFIED TIME." (Pl.'s Br. Ex. 3.) The resolution provides: "[U]pon the written application of all elected County Officers, Commission, Board or Body having the power of appointment, employment or removal of employees of the officer, department, commission, board or body ... IT IS HEREBY RESOLVED that a Civil Service System of employment is hereby created for employees of Upson County, Georgia...." (Pl.'s Br. Ex. 3.) The language contained in the December 30 resolution tracks the language contained in O.C.G.A. § 36-1-21(a) & (b). This code section provides the authorization under which a county may create a civil service system. Therefore, as plaintiff falls within the scope of the December 30 resolution, plaintiff is "subject to the civil service laws of the ... political subdivision ... which employs him." 29 U.S.C. § 203(e)(2)(C)(i). Accordingly, plaintiff is an "employee" within the meaning of the FLSA.

B. Agreement
Defendants contend that an agreement existed between plaintiff and Sheriff Greene by which plaintiff would receive compensatory time off in lieu of overtime pay.
Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive ... in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.... A public agency may provide compensatory time ... pursuant to ... an agreement or understanding arrived at between the employer and employee before the performance of work.
29 U.S.C. § 207(o)(1) & (2). The Wage and Hour Division of the Department of Labor has issued regulations interpreting the scope of § 207(o). See 29 C.F.R. § 553.23. These regulations provide:
An agreement or understanding may be evidenced by a notice to the employee that compensatory time off will be given in lieu of overtime pay. In such a case, an agreement or understanding would be presumed to exist for purposes of section 7(o) with respect to any employee who fails to express to the employer an unwillingness to accept compensatory time off in lieu of overtime pay.
Id. § 553.23(c)(1). Further, in International Association of Firefighters, Local 349 v. City of Rome, 682 F.Supp. 522 (N.D.Ga.1988), the District Court for the Northern District of Georgia, in addressing a similar provision, held that "an implied agreement ... may not be inferred from a continuation in working and accepting pay checks where there exists contemporaneous protest to the employer's institution of [the] policy...." City of Rome, 682 F.Supp. at 529 (emphasis added); see also id. n. 3 (citing 29 C.F.R. § 553.23(c)).
In the case sub judice, plaintiff concedes that "he did not at any time express to Sheriff Greene, or to any of the higher ranking officers in the department, an unwillingness to accept compensatory time off in lieu of overtime pay." (Def.s' Statement Material Fact ¶ 6; Pl.'s Resp. ¶ 6 (admitted).) In the absence of "contemporaneous protest," an agreement is presumed to exist. See 29 C.F.R. § 553.23(c)(1). Accordingly, defendants' motion for summary judgment on plaintiff's claim under the FLSA is GRANTED.

*1510 II. First Amendment
In his complaint, plaintiff asserts that defendants transferred plaintiff out of the multijurisdictional drug task force and terminated plaintiff's employment in retaliation for plaintiff's exercise of his First Amendment right of free speech.
In order for a public employee to establish that an employer conditioned his or her job in a way that burdened impermissibly a constitutional right, the employee must first demonstrate that the asserted right is protected by the Constitution and that he or she suffered "adverse employment action" for exercising the right. Upon making these two showings, the employee is entitled to prevail if the adverse employment action was taken in such a way as to infringe the constitutionally protected right.
McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir.1994).

A. Constitutional Protection for Asserted Right
Plaintiff contends that the actions of defendants impermissibly burdened his right of free speech as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Defendants concede that the exercise of this right is entitled to constitutional protection.

B. Adverse Employment Action
"For a public employee to establish that an employment action has infringed a constitutional right the employee also must demonstrate that he or she has suffered some sort of adverse employment action for exercising the right." McCabe, 12 F.3d at 1563. Plaintiff contends that he suffered two adverse employment actions. First, plaintiff asserts that his transfer from the multijurisdictional drug task force to the investigations division of the sheriff's department constituted an adverse employment action. Second, plaintiff contends that his discharge constituted an adverse employment action.
The parties do not dispute that plaintiff's discharge from employment with the Upson County Sheriff's Department constituted an adverse employment action. Defendants, however, assert that plaintiff's transfer from the drug task force to the investigations division was not an adverse employment action.
Plaintiff suffered no loss in pay, benefits or classification as a result of his transfer. Plaintiff, however, contends that the transfer constituted an adverse employment action because the transfer deprived him of the use of a county car. Although the use of a county car may be desirable by an employee, the action of a public employer in depriving an employee of the use of such a car, standing alone, does not constitute an adverse employment action sufficient to give rise to a cause of action under 42 U.S.C. § 1983. Cf. McCabe, 12 F.3d at 1563-64 (transfer considered adverse employment action when transfer adversely affected eligibility for salary increases, and new position involved "less responsibility and more menial tasks"); Hudson v. Southern Ductile Casting Corp., 849 F.2d 1372, 1375 (11th Cir.1988); Cargile v. Horton Homes, Inc., 851 F.Supp. 1575, 1578 (M.D.Ga.1994).

C. Did the adverse employment action infringe the protected right?
"In cases where the state denies discharging the employee because of speech, a four-stage analysis has evolved. Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989); see also Williams v. Roberts, 904 F.2d 634, 637 (11th Cir.1990). First, the court must determine if the "employee's speech may be `fairly characterized as constituting speech on a matter of public concern.'" Bryson, 888 F.2d at 1565. Second, if the speech addresses a matter of public concern, the court must then conduct a balancing test in which it weighs the First Amendment interests of the employee against "`the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Id. (quoting Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Third, if the employee's claim survives the balancing test, the fact-finder must determine "whether the employee's speech played a `substantial part' in the government's decision to ... discharge the employee." Id. Finally, if the fact-finder *1511 determines that the employee's speech played a substantial part in the employee's discharge, the state must prove by a preponderance of the evidence that it would have discharged the employee even in the absence of the speech. Id.

1. Public Concern
As a threshold matter, the court must determine whether the speech at issue involved a matter of public concern. To determine whether an employee's speech is of public concern, the court must examine the "`content, form, and context of a given statement, as revealed by the whole record.'" Kurtz v. Vickrey, 855 F.2d 723, 727 (11th Cir.1988); see also Goffer v. Marbury, 956 F.2d 1045, 1050 (11th Cir.1992). There is no question that plaintiff's statements to the G.B.I., F.B.I., and the Assistant United States Attorney, and plaintiff's statements at the meeting with Greene, Kilgore, and Greathouse, related to matters of public concern. In Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989), the Eleventh Circuit Court of Appeals clearly recognized that statements related to "`actual or potential wrongdoing or breach of public trust'" by a public official involve matters of public concern. Bryson, 888 F.2d at 1566 (quoting Morales v. Stierheim, 848 F.2d 1145, 1149 (11th Cir.1988)).

2. Balancing Test
The second part of the four-part analysis requires the court to conduct a balancing test in which it weighs the First Amendment interests of the employee against "`the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Bryson, 888 F.2d at 1565 (quoting Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).
[The court] must consider several factors in balancing the State's interest in efficient provision of public services against [plaintiff's] speech interest, including: (1) whether the speech at issue impedes the government's ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.
Morales, 848 F.2d at 1149. Further, in determining whether an employee's speech impedes the employer's ability to perform its duties efficiently, the court should also consider the "detrimental impact" the speech has on "close working relationships" and "harmony among coworkers." Id.
There is no question that plaintiff's speech disrupted the effective administration of the multijurisdictional drug task force. At the time Captain Greathouse approached plaintiff about the covert investigation being conducted by plaintiff, Greathouse was not aware that the investigation concerned his own activities. Accordingly, Greathouse fully expected that as plaintiff's supervisor, he was entitled to know about any investigations being conducted by members of his department. Plaintiff, however, refused to discuss the investigation with Greathouse. Plaintiff's refusal severely undermined Greathouse's authority as commander of the drug task force and, therefore, impeded the ability of the task force to perform its duties. Further, plaintiff's statements at the meeting with Greene, Kilgore, and Greathouse, protected or otherwise, clearly had a "detrimental impact" on his relationship with his supervisors.
Plaintiff choose to present his allegations concerning Greathouse to persons employed outside the Upson County Sheriff's Department. Although plaintiff did not suspect Sheriff Greene and Chief Deputy Kilgore of being involved in the alleged wiretaps, plaintiff failed to inform either Greene or Kilgore of the allegations and the investigation. The manner, time, place, and context in which plaintiff exercised his right of free speech was poorly selected and contributed significantly to the disruption of the Upson County Sheriff's Department and the drug task force.
Although plaintiff's speech involved a matter of public concern, the manner in which plaintiff presented his allegations, and the resulting impact of those allegations, seriously jeopardized "the State's interest in efficient provision of public services...." Morales, 848 F.2d at 1149. The court holds, therefore, that plaintiff's First Amendment interests are outweighed by the interest of *1512 the Upson County Sheriff's Department in providing efficient public services. Accordingly, defendants' motion for summary judgment on plaintiff's First Amendment claim is GRANTED. However, so as to provide a complete record, the court will proceed to address the remaining elements of the four-stage analysis.

3. Motivation for Adverse Employment Action
The third stage of the Bryson analysis requires the fact-finder to determine "whether the employee's speech played a `substantial part' in the government's decision to ... discharge the employee." Bryson, 888 F.2d at 1565. However, before this issue may be submitted to a jury, the court must determine whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Metropolitan Petroleum Co., 743 F.Supp. at 823. Defendants have submitted a substantial amount of evidence justifying the decision to terminate plaintiff's employment. The undisputed facts show that plaintiff (1) violated county policy in failing to provide medical certification excusing his extended absence from work, and (2) forged a search warrant. Plaintiff has provided absolutely no evidence indicating that the basis for his termination was for any reason other than those set forth in the April 16, 1993 letter from Chief Deputy Kilgore. Accordingly, plaintiff has failed to show that his speech played a "substantial part" in the decision to terminate his employment.

4. Defendants' Burden
Assuming arguendo that a jury concluded that plaintiff's speech played a "substantial part" in the decision to terminate his employment, the burden would shift to defendants to prove by a preponderance of the evidence that plaintiff would have been discharged even in the absence of the speech. As discussed above, the record in the case sub judice is replete with evidence in support of defendants' decision to terminate plaintiff's employment. Accordingly, had plaintiff's First Amendment claim survived to this stage of the Bryson analysis, plaintiff's claim would still fail in that defendants have more than met their burden of establishing that plaintiff would have been discharged even in the absence of the speech at issue.

III. Due Process
Plaintiff contends that defendants have violated his procedural due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution. "A plaintiff may bring a cause of action under 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States Constitution alleging that the defendant ... has deprived the plaintiff of a constitutionally protected interest in life, liberty or property." Jones v. City of East Point, 795 F.Supp. 408, 414 (N.D.Ga.1992). Plaintiff asserts that defendants deprived him of a constitutionally protected property interest and a constitutionally protected liberty interest.

A. Property Interest
A person may be deprived of a protected property interest only if afforded due process of law. Jones, 795 F.Supp. at 414. A procedural due process analysis requires a two-part inquiry: (1) has the plaintiff been deprived of a protected property interest; and (2), if so, was due process accorded. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982); see also Bailey v. Board of Commissioners, 956 F.2d 1112, 1122 (11th Cir.1992); Woodruff v. United States, 954 F.2d 634, 641 (11th Cir.1992).
"The existence of a legitimate claim of entitlement to a property interest ... is to be determined in accordance with state law." Nicholson v. Gant, 816 F.2d 591, 597 (11th Cir.1987); see also Nolin v. Douglas County, 903 F.2d 1546, 1553 (11th Cir.1990); Wofford v. Glynn Brunswick Memorial Hospital, 864 F.2d 117, 119 (11th Cir.1989). "The acquisition of a Fourteenth Amendment property interest with accompanying procedural due process requires more than a unilateral expectation; there must be a legitimate claim of entitlement." Adams v. Bainbridge-Decatur County Hospital Authority, 888 F.2d 1356, 1363 (11th Cir.1989); see also Nolin, 903 F.2d at 1553; Wofford, 864 F.2d at 119. In general, the existence of a property right *1513 in an aspect of public employment "is made by reference to laws, regulations, or personnel policies." Nolin, 903 F.2d at 1553. A plaintiff who asserts that a procedural due process violation has occurred, bears the initial burden of establishing a protected property interest. Id. at 1554. The parties do not dispute that plaintiff maintained a property right in his continued employment with the Upson County Sheriff's Department.
If a plaintiff establishes that a protected property interest exists, "the process due in abridging [that] right[] is governed by federal law." Wofford, 864 F.2d at 118; see also Harris v. Birmingham Board of Education, 817 F.2d 1525, 1527 (11th Cir.1987). Therefore, once a property right has been identified, the court must determine whether the plaintiff was afforded due process. Nicholson, 816 F.2d at 598. The essential elements of due process are notice and an opportunity to be heard. Id. However, "[t]he Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill advised personnel decisions." Lee v. Hutson, 810 F.2d 1030, 1032 (11th Cir.1987). Further, even if "a state procedure is inadequate, no procedural due process right has been violated unless and until the state fails to remedy that inadequacy." McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.1994). "In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise." McKinney, 20 F.3d at 1557.
Plaintiff contends that defendants failed to provide a pre-termination hearing in violation of the Due Process Clause of the Fourteenth Amendment. However, as the decision in McKinney indicates, "the state may cure a procedural deprivation by providing a later procedural remedy...." Id. In the case sub judice, plaintiff was afforded two post-termination hearings. Although plaintiff asserts that defendants failed to provide sufficient notice of the May 17, 1993 hearing  thereby preventing plaintiff from attending the hearing  the process and notice afforded plaintiff in regard to the April 12, 1994 hearing more than satisfied the requirements of due process. Further, as the Eleventh Circuit recognized in McKinney, the availability of state court remedies is also a factor to be considered when determining whether sufficient process exists to redress a procedural deprivation. Id. In fact, as the record in this case indicates, plaintiff is currently challenging the propriety of his termination before the Superior Court of Upson County, See infra note 3, and has provided the court no basis for finding that the procedure afforded by that court is inadequate. Although the Eleventh Circuit rejected the idea "that one who suffers a due process violation must first seek relief in state courts," i.e., an exhaustion requirement, McKinney, 20 F.3d at 1567 (Hatchett, J., concurring specially), the court did recognize that it was proper to consider the availability of state court remedies in considering whether adequate process existed to remedy an alleged deprivation. See McKinney, 20 F.3d at 1564 n. 20. Accordingly, defendants' motion for summary judgment on plaintiff's claim that defendants deprived him of a constitutionally protected property interest, is GRANTED.

B. Liberty Interest
"While damage to reputation, standing alone, does not provide the basis for an action under Section 1983, ... when such damage is sustained in connection with a termination of employment ... it may give rise to a claim for deprivation of liberty actionable under Section 1983." Campbell v. Pierce County, 741 F.2d 1342, 1344 (11th Cir.1984); see also Green v. Brantley, 895 F.2d 1387, 1392-93 (11th Cir.1990); Little v. City of North Miami, 805 F.2d 962, 969 (11th Cir. 1986); Beckham v. Harris, 756 F.2d 1032, 1038 (4th Cir.1985). As with a procedural due process claim involving a property interest, a procedural due process claim involving a liberty interest requires a two-part inquiry: (1) has the plaintiff been deprived of a protected liberty interest; and (2), if so, was due process accorded. See Buxton v. City Plant City, 871 F.2d 1037, 1041-46 (11th Cir.1989).
To establish the deprivation of a protected liberty interest, a plaintiff must prove: "(1) a false statement (2) of a stigmatizing *1514 nature (3) attending a governmental employee's discharge (4) made public (5) by the governmental employer...." Buxton, 871 F.2d at 1042. Plaintiff contends that in the process of terminating his employment, defendants falsely accused plaintiff of forgery. Plaintiff admits that he participated in the preparation of a false search warrant. However, he denies that his actions constituted the crime of "forgery." The record, including plaintiff's own testimony, clearly indicates that plaintiff prepared a false search warrant and, on the line reserved for the signature of the magistrate, scrawled an illegible signature. These actions amply justify defendants' conclusion that plaintiff "forged a judge's name on a search warrant...." (Greene Dep.Ex. 6.) Plaintiff's argument that his actions did not constitute the crime of forgery is irrelevant; plaintiff's actions fell well within the common meaning of the word. Therefore, plaintiff has failed to prove that defendants deprived him of a protected liberty interest. Defendants' motion for summary judgment on plaintiff's claim that defendants deprived him of a constitutionally protected liberty interest, is GRANTED.
Assuming that plaintiff had established the existence of a protected liberty interest, the court would have then been called upon to determine whether plaintiff was afforded due process. "[D]ue process requires that the aggrieved individual be afforded a hearing to clear his good name." Beckham, 756 F.2d at 1038. However, "[b]ecause [the hearing] is provided simply to cleanse the reputation of the claimant, the hearing need not take place prior to his termination or to the publication of related information adverse to his interests." Campbell, 741 F.2d at 1345; see also Buxton, 871 F.2d at 1046; Harden v. Adams, 760 F.2d 1158, 1167 (11th Cir.1985). Further, the only procedure required of a name-clearing hearing is "that the claimant be accorded notice of the charges against him and an opportunity `to support his allegations by argument however brief,' and, if need be, by proof, however informal." Campbell, 741 F.2d at 1345. As discussed above, see infra part III(A), plaintiff was provided sufficient post-termination opportunities in which to clear his name. These post-termination procedures more than satisfy the mandate of due process.

IV. Equal Protection
Plaintiff contends that defendants' decision to discharge plaintiff violated plaintiff's Fourteenth Amendment right to equal protection under the law. Specifically, plaintiff asserts that his "termination was based, in part, on a real or perceived medical disability"  that is, plaintiff's loss of an eye. (Compl. ¶ 57.)
"[A] plaintiff must show a purpose or intent to discriminate in proving an equal protection violation...." Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 n. 8 (11th Cir.1991); see also E & T Realty v. Strickland, 830 F.2d 1107, 1114 (11th Cir.1987) ("district court should determine whether defendants purposefully discriminated against plaintiffs"). In the case sub judice, plaintiff has put forth absolutely no evidence from which a jury could find that defendants intended to discriminate against plaintiff on the basis of his disability. In fact, the record indicates that defendants were not even aware that plaintiff's eye had been removed until after plaintiff had been terminated from his employment. As discussed above, "there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Metropolitan Petroleum Co., 743 F.Supp. at 823. Accordingly, defendants' motion for summary judgment on plaintiff's equal protection claim is GRANTED.

V. Americans with Disabilities Act
Plaintiff asserts that defendants terminated his employment on the basis of his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The ADA provides: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees...." 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination in violation of the ADA, a plaintiff must prove: (1) that he is a qualified individual with a disability; (2) that he has suffered an adverse employment action; and (3) that a causal connection exists between the adverse employment action and the disability. See Hindman v. GTE Data Services, *1515 Inc., 1994 WL 371396 (M.D.Fla.). Plaintiff, however, has put forth no evidence from which a jury could find a causal connection between his termination and his disability. Plaintiff has merely made broad, conclusory allegations attacking the motivations of defendants. These unsupported allegations do not create a question of fact for the jury as to the causation element of plaintiff's prima facie case. Accordingly, defendants' motion for summary judgment on plaintiff's ADA claim is GRANTED.

VI. Qualified Immunity
The Eleventh Circuit Court of Appeals has adopted an objective-reasonableness test for determining whether a government official is entitled to qualified immunity. See Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991); Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988). "The objective-reasonableness test provides qualified immunity protection to `all but the plainly incompetent or those who knowingly violate the law.'" Courson, 939 F.2d at 1487. "Eligibility for this immunity is determined on an objective basis and not on the basis of the officer's subjective beliefs." Acoff v. Abston, 762 F.2d 1543, 1549 (11th Cir.1985).
The objective reasonableness test involves a two-step process. First, the defendant must show that "`he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.'" Courson, 939 F.2d at 1487. If the defendant is able to meet this burden of production, the burden then shifts to the plaintiff to show that the defendant's actions violated clearly established constitutional law. Id. The second prong of the test is further divided into two subparts. First, the court must determine if the applicable law was clearly established at the time the action occurred. Id. at 1487-88. Second, if the law was clearly established, the court must determine if there is a genuine issue of material fact concerning whether defendant violated this law. Id. at 1488. Under this analysis, the defendant is entitled to qualified immunity if either (1) the law was not clearly established, or (2) the law was clearly established but the defendant did not violate the law. Id. n. 14.

A. Scope of Discretionary Authority
A government official proves that he acted within the scope of his discretionary authority by showing "`objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.'" Id. at 1487 (quoting Rich, 841 F.2d at 1564). The parties do not dispute that defendants Greene, Kilgore, and Greathouse acted within the scope of their discretionary authority in terminating plaintiff's employment.

B. Clearly Established Law
"The plaintiff has the burden of showing that the defendant violated clearly established constitutional rights." Busby v. City of Orlando, 931 F.2d 764, 773 (11th Cir.1991). A plaintiff "cannot persuade the court that the law is clearly established by making general conclusory allegations of a constitutional violation or by stating broad legal truisms.... The court must be convinced of the existence of a clear, factually-defined, well-recognized right of a which a reasonable [person in the defendant's position] should have known." Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1322-23 (11th Cir.1989).

1. First Amendment
The Supreme Court has never established a bright-line standard for determining when the State as an employer may take action adverse to an employee in response to that employee's speech. Instead, the Court has balanced the interest of the employee in commenting on matters of public concern against the interest of the employer in performing public services efficiently. The court must necessarily balance these interests on a case-by-case basis. Because of this case-by-case basis, "[t]here will rarely be a basis for [an] a priori judgment that the termination or discipline of a public employee violated `clearly established' constitutional rights." Because 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 *1516 case where Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful.
Dartland, 866 F.2d at 1323; see also Busby, 931 F.2d at 773-74; McDaniel v. Woodard, 886 F.2d 311, 314 (11th Cir.1989). However, the "court need not decide the precise result of applying the Pickering balancing test.... Instead, [the court] need only decide whether such a result would be so evidently in favor of protecting the employee's right to speak that reasonable officials in [defendants' position] `would necessarily know that the termination ... under these circumstances violated [plaintiff's] constitutional rights.'" Busby, 931 F.2d at 774.
Reviewing the facts in a light most favorable to plaintiff, the court cannot say as a matter of law that the balancing of plaintiff's First Amendment interests against the interests of the public employer would "lead to the inevitable conclusion that the discharge of [plaintiff] was unlawful." Dartland, 866 F.2d at 1323. This conclusion, however, does not mean that upon final resolution of the balancing test the court would not find in favor of plaintiff; it means only that plaintiff's First Amendment interests do not "obviously override" the interests of Upson County in providing efficient public services. McDaniel, 886 F.2d at 315. Accordingly, "[b]ecause the balance of interests in this case is not so clear," id. at 314, defendants' motion for summary judgment on the issue of qualified immunity for plaintiff's First Amendment claim, is GRANTED.

2. Due Process
Unlike plaintiff's First Amendment claim, the parameters of plaintiff's procedural due process claims are well-defined. It is clearly established that a public employee with a property interest in continued public employment is entitled to a pre-termination hearing. Further, it is clearly established that a false, public statement of a stigmatizing nature attending a governmental employee's discharge constitutes a deprivation of a protected liberty interest. Plaintiff, therefore, has satisfied his initial burden. However, as discussed above, the second prong of the objective reasonableness test is divided into two subparts. Courson, 939 F.2d at 1487. The court has addressed the first subpart of the test  that is, whether the applicable law was clearly established at the time the action occurred. The second subpart requires the court to determine if there is a genuine issue of material fact concerning whether defendants violated this law. Id. at 1488. As addressed in Part III of this order, the court has already held that defendants' actions did not violate plaintiff's procedural due process rights. Accordingly, defendants' motion for summary judgment on the issue of qualified immunity as to plaintiff's procedural due process claims, is GRANTED.

3. Equal Protection
Plaintiff's equal protection claim does not rest on well-established legal principles that have been clearly defined in situations factually similar to that of the case sub judice. See Dartland, 866 F.2d at 1322-23. As discussed above, "conclusory allegations of a constitutional violation or ... broad legal truisms" will not satisfy plaintiff's burden. Id. Accordingly, defendants' motion for summary judgment on the issue of qualified immunity as to plaintiff's equal protection claim, is GRANTED.

CONCLUSION
Defendants' motion for summary judgment on plaintiff's claim under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., is GRANTED. Defendants' motion for summary judgment on plaintiff's First Amendment claim is GRANTED. Defendants' motion for summary judgment on plaintiff's procedural due process claims is GRANTED. Defendants' motion for summary judgment on plaintiff's equal protection claim is GRANTED. Defendants' motion for summary judgment on plaintiff's claim under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., is GRANTED. Finally, defendants' motion for summary judgment on the issue of qualified immunity is GRANTED.
SO ORDERED.
NOTES
[1]  Greene was elected Sheriff of Upson County in a special election after the death of Sheriff Merrill Greathouse. Plaintiff, however, supported Greene's opponent in the special election and, when approached by Greene about plaintiff's support in the general election, informed Greene that he preferred not to be involved.
[2]  Paragraph 5.405 of the Upson County Personnel Policies provides: "Sick Leave requires the approval of the appropriate appointing authority or designee." Further, paragraph 5.406 states: "A medical statement signed by a licensed physician may be required to substantiate sick leave for ... absence of three (3) or more consecutive days...."
[3]  Plaintiff has also filed suit against Upson County in the Superior Court of Upson County. See Smith v. Upson County, Civil Action No. 94-V-255. In that suit, plaintiff contends that defendant Upson County breached plaintiff's employment contract in that "[n]o legitimate cause existed to justify Plaintiff's termination."


No. 3--01--0178

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

In Re T.B., B.B.,				)	Appeal from the Circuit Court

C.R., and I.R., Minors		)	of the 10th Judicial Circuit,

	)	Peoria County, Illinois

(The People of the State of		)

Illinois,						)

	)

Petitioner-Appellee,		)	No. 98--JA--154

	)

v.						)

	)

Barbara R.,					)	Honorable

                                )	Jerelyn D. Maher

Respondent-Appellant).		)	Judge, Presiding

_________________________________________________________________

JUSTICE McDADE delivered the opinion of the court:

_________________________________________________________________

Following a permanency review hearing, the court ordered that the permanency goal for the respondent mother's children be changed from "return home" to "substitute care."  Section 2--28(3) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--28(3) (West 2000)) states that any such order is immediately appealable as of right.  Accordingly, the respondent appeals from the court's order.  We dismiss the appeal for lack of jurisdiction because we hold that section 2--28(3) violates the separation of powers clause of the Illinois Constitution.

BACKGROUND

On September 2, 1998, the State filed a juvenile petition asking that the court find the respondent's children neglected because of a history of domestic violence in the home, the respondent's substance abuse problem, and the respondent's attempted suicide.  The court ordered that the parents should not commit further incidents of domestic violence, should not have alcohol or illegal substances in the home, and should not use such substances.

The State filed a supplemental juvenile petition on October 7, 1998, alleging violations of the previous court order.  The court then ordered that the children be placed in shelter care.

Following a dispositional hearing on the petitions, the court found the respondent to be unfit.  She was ordered to complete a variety of tasks.  Five permanency review orders submitted by the court between April 29, 1999, and September 7, 2000, indicated that the respondent was making reasonable progress toward completing her assigned tasks.  Each of these permanency review orders set a permanency goal of "return home" for the children.

On February 1, 2001, the court's permanency review order changed this goal to "substitute care."  The court noted that the respondent had not made reasonable efforts to achieve the service plan and permanency goal because of her mental illness, missed appointments, engaged in threatening behavior toward a visitation specialist, attempted to "drop" an order of protection against the father of two of the children, and subsequently attempted to reunite with him.  The respondent appeals from this latest permanency review order, as provided by the Act.  705 ILCS 405/2--28(3) (West 2000).

ANALYSIS

Section 2--28 of the Act provides the procedure a court uses to establish a permanency goal for minors found to be abused or neglected.  705 ILCS 405/2--28 (West 2000).  The court must conduct permanency hearings at a minimum of every six months after the initial permanency hearing.  705 ILCS 405/2--28(2) (West 2000).  Following each permanency hearing, the court shall enter a written order.  705 ILCS 405/2--28(3) (West 2000).  The final sentence of section 2--28(3) states that such an order "shall be immediately appealable as a matter of right under Supreme Court Rule 304(b)(1)."  705 ILCS 405/2--28(3) (West 2000).  This Illinois Supreme Court rule states that an "order entered in the administration of [a] *** guardianship, *** which finally determines a right or status of a party" is appealable.  155 Ill. 2d R. 304(b)(1).

Recently, two districts of the Illinois Appellate Court have ruled that the final sentence of section 2--28(3), granting an appeal as of right from a permanency review order, violates the separation of powers clause of the Illinois Constitution.  See
In re D.D.H.
, 319 Ill. App. 3d 989, 749 N.E.2d 31 (5th Dist. 2001);
In re C.B.
, 322 Ill. App. 3d 1011, 750 N.E.2d 1271 (4th Dist. 2001).  The separation of powers clause states that the three branches of government are separate and no branch shall exercise powers properly belonging to another.  Ill. Const. 1970, art. II, §1.  Appeals from final judgments to the Illinois Appellate Court are a matter of right.  Ill. Const. 1970, art. VI, §6.  Only the Illinois Supreme Court by rule may provide for appeals from judgments other than final judgments.  Ill. Const. 1970, art. VI, §6.

Both
D.D.H.
 and
C.B.
 ruled that a permanency review order is not a final judgment from which a parent may properly appeal.
D.D.H.
 stated that such an order is not a final determination of the right or status of a parent but, rather, is an intermediate step for the protection and best interests of a child.
D.D.H.
, 319 Ill. App. 3d 989, 749 N.E.2d 31.  The legislative branch may not arrogate the right to grant an appeal from a judgment that is not a final judgment.
D.D.H.
, 319 Ill. App. 3d 989, 749 N.E.2d 31.  This judicial power is explicitly given to the Illinois Supreme Court by the Illinois Constitution.
 Ill. Const. 1970, art. VI, §6.

We appreciate what the legislature may have intended by providing a party with a right to appeal from an order changing a permanency goal.  Certainly, such a changed goal often is a difficult, although not impossible, hurdle for a parent to overcome.  However, the legislative branch is constitutionally prohibited from providing a parent with such an appeal as of right.

As in
D.D.H.
 and
C.B.
, we find that the final sentence of section 2--28(3) granting a right of appeal is severable from the rest of the statute.  As the court stated in
D.D.H.
, the appeals provision of the statute is merely a procedural means of providing for interlocutory appeals.
  The remainder of the statute is unaffected by excluding this appeals provision.
D.D.H.
, 319 Ill. App. 3d 989, 749 N.E.2d 31.

Because we rule that the appeals portion of section 2--28(3) is unconstitutional, the defendant is attempting to appeal from a nonfinal judgment that is not subject to any Illinois Supreme Court rule granting a right of appeal.  Ill. Const. 1970, art. VI, §6; 155 Ill. 2d R. 304(b)(1).  Therefore, we have no jurisdiction to consider the merits of her appeal.

CONCLUSION

For the foregoing reasons, we dismiss this appeal from the permanency review order of the Peoria County circuit court for lack of jurisdiction.

Appeal dismissed.

LYTTON and SLATER, J.J., concur.


561 S.W.2d 612 (1978)
DIAMOND OAKS TERRACE APARTMENTS and Margaret Byers, Appellants,
v.
Jerrie L. SPRAGGINS, Appellee.
No. 17926.
Court of Civil Appeals of Texas, Fort Worth.
January 26, 1978.
Day & Day and Bruce W. McGee, Fort Worth, for appellants.
Patton & Gilfeather and Pete F. Gilfeather, Fort Worth, for appellee.

OPINION
SPURLOCK, Justice.
This is a suit for recovery of a security deposit and attorney's fees brought by a tenant against an apartment complex and its resident manager under art. 5236e.[1] In a nonjury trial, the court awarded the plaintiff $125 in damages and $150 in attorney's fees. Defendants have perfected their appeal.
We reverse and remand in part and reverse and render in part.
The following constitute the statutory bases for the instant lawsuit.
Art. 5236e, § 3(a) provides in part:

*613 "In the event actual cause exists for retaining all or any portion of the security deposit, the landlord shall return to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions...." (Emphasis added.)
Art. 5236e, § 4(b) provides:
"A landlord who in bad faith fails to provide a written description and itemized list of damages and charges pursuant to the requirements of this Act, forfeits all rights to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises and is liable to the tenant for reasonable attorney's fees in a lawsuit to recover the security deposit." (Emphasis added.)
Art. 5236e, § 4(c) provides:
"In any court action brought by a tenant under this Act, the landlord bears the burden of proving that his retention of the security deposit or any portion thereof was reasonable. In this court action the landlord is not liable for the penalty, treble damages, or attorneys fees referred to in Subsections (a) and (b) of this section unless the landlord is found to have acted in bad faith. Failure to return a security deposit within 30 days or failure to provide a written description and itemization of deductions within 30 days is prima facie evidence and a presumption that the landlord acted in bad faith." (Emphasis added.)
By their fourth point of error, the appellants contend that the "trial court erred by rendering judgment for plaintiff, ... against defendant, Diamond Oaks Terrace Apartments, for the reason that plaintiff, Jerrie L. Spraggins, failed to meet her burden of proving a material portion of her case."
The thrust of appellants' argument is that the trial court did not make an affirmative finding that Diamond Oaks Terrace Apartments' failure to provide the required list of deductions was in bad faith. Rather, the trial court found in Finding of Fact No. 9 that:
"The Court fails to find from a preponderance of the evidence that the failure of Defendant Diamond Oaks Terrace Apartments to provide Plaintiff Jerrie L. Spraggins with a written description and itemized list of damages and charges pursuant to the requirements of Article 5236e of Vernon's Annotated Texas Statutes was not in bad faith." (Emphasis added.)
By this finding of fact, the trial court misplaced the burden of proof, which is quite understandable from a reading of art. 5236e § 4(c). By that section, the landlord only has the burden of proving that his retention of the security deposit was reasonable. This same section provides that the landlord is not liable unless he has been found to have acted in bad faith. In the case at bar, there is no affirmative finding that the Diamond Oaks Terrace Apartments acted in bad faith. This is an absolute requirement of the statute.
Tex.R.Civ.P. 299 provides in part:
"The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; but where one or more elements thereof have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment. ..." (Emphasis added.)
We can not presume a finding of bad faith under Tex.R.Civ.P. 299, because this is not an instance of an "omitted unrequested element," because of the trial court's finding of fact no. 9.
We sustain appellant's fourth point of error.
By their seventh point of error, appellants contend that "[t]he trial court erred in its conclusion that plaintiff, Jerrie L. Spraggins, have judgment jointly against defendants ... for the reason that its findings of fact and conclusions of law establish as a matter of law that there was no basis for such judgment."
*614 Plaintiff secured a judgment against the apartment complex and its resident manager, Margaret Byers. However, in conclusion of law # 7, the trial court concluded that:
"Margaret Byers, not being a landlord as defined in Article 5236e of Vernon's Annotated Texas Statutes, is entitled to judgment that Plaintiff take nothing as to her."
This conclusion of law is in direct conflict with the trial court's judgment. Also, we agree that Margaret Byers is not a landlord within the meaning of art. 5236e, § 1(2), which provides:
"`Landlord' means the owner, lessor, or sublessor of a residential dwelling unit. `Landlord' also includes any legal entity shown as a managing agent or leasing agent on a written rental agreement."
Here, the lease agreement was signed by Mrs. J. Hays. There is no evidence in the record that Margaret Byers was shown on any written rental agreement.
We sustain appellants' seventh point of error.
Having sustained appellants' fourth and seventh points of error, the remainder of appellants' points of error have been duly considered and are overruled.
The judgment of the trial court is reversed and remanded for a new trial as to defendant Diamond Oaks Terrace Apartments; however, the judgment as to Margaret Byers is reversed and judgment is hereby rendered that plaintiff take nothing as to defendant Margaret Byers.
All costs are taxed to Diamond Oaks Terrace Apartments.
NOTES
[1]  All statutory references are to Tex.Rev.Civ.Stat.Ann.


429 F.Supp. 193 (1977)
UNITED STATES of America, Plaintiff,
v.
INTERLAKE, INC., Defendant.
No. 76 C 3599.
United States District Court, N. D. Illinois, E. D.
February 11, 1977.
*194 *195 Thomas G. Dent, Asst. U. S. Atty., Chicago, Ill., for plaintiff.
W. Gerald Thursby, Lawrence A. McHugh, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER
ROBSON, Senior District Judge.
This cause is before the court on the motion of the defendant to dismiss the complaint for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted or, in the alternative, for a stay. For the reasons hereinafter stated, the motion to dismiss shall be denied and the motion for a stay shall be granted.
Plaintiff, United States of America, has invoked this court's jurisdiction under 42 U.S.C. § 1857c-8(b)(2) and 28 U.S.C. § 1345. It seeks injunctive relief to prohibit defendant, Interlake, Inc., from operating its by-product coke production facility in Chicago, Illinois, in violation of the Clean Air Act, 42 U.S.C. § 1857 et seq. ("Act").
It is alleged that the Administrator of the Environmental Protection Agency ("Administrator"), pursuant to Section 110 of the Act, 42 U.S.C. § 1857c-5, approved a plan submitted by the State of Illinois for the implementation, maintenance and enforcement of air quality standards. The plan, approved May 31, 1972, included Illinois Pollution Control Board Rule 203(d)(6)(B) (ii)(bb)[1] ("Rule 203") which requires that all coke oven facilities in Illinois be equipped with certain emission control systems on and after December 31, 1974.
Plaintiff further alleges that the Administrator, pursuant to Section 110 of the Act, promulgated a revision to the Illinois implementation plan on August 23, 1973, requiring certain steps toward compliance with Rule 203 at 40 C.F.R. 52.730(b)(2)(ii).[2] It is further alleged that notice was given the defendant and the State of Illinois, as required by Section 113 of the Act, 42 U.S.C. § 1857c-8, on August 16, 1974, advising that defendant's production facility was in violation of the implementation plan. Finally, plaintiff alleges that defendant has been in violation of Rule 203 and of 40 C.F.R. 52.730(b)(2)(ii) since December 31, 1974.
Initially, defendant has moved to dismiss the complaint for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted. It notes that Rule 203 requires that all coke ovens be equipped with certain devices on and after December 31, 1974. It further points out that plaintiff's notice is alleged to have been mailed on August 16, 1974. Defendant thus concludes that there has been no notice of a Rule 203 violation as required by the Act as there was no requirement of *196 compliance with Rule 203 when the notice was mailed. In addition, defendant maintains that the notice of August 16, 1974, is an insufficient basis on which to maintain this action for an alleged violation of Rule 203 as the notice fails to allege a violation of Rule 203.
In response, plaintiff observes that its revision to the implementation plan of August 23, 1973, required that certain acts be completed by certain dates. It further points out that the notice of August 16, 1974, informed the defendant and the State of Illinois of defendant's failure to comply with the first three requirements of this revision to the plan of implementation and that the notice further informed the defendant and the State of Illinois that defendant's then current control equipment did not comply with Rule 203. Finally, plaintiff asserts that various letters have since been mailed to the defendant and to the State of Illinois in 1976 in which subsequent findings and notices of a violation of Rule 203 were given.
Section 113(b)(2) of the Act, 42 U.S.C. § 1857c-8(b)(2), inter alia, permits the Administrator to bring a civil action whenever any requirement of an implementation plan is violated. However, said action can only be commenced "more than 30 days after" notice by the Administrator under Section 113(b)(1), 42 U.S.C. § 1857c-8(b)(1), of a finding of a violation. Section 113(b)(1), inter alia, provides that whenever the Administrator finds a violation of any requirement of an applicable plan, he shall notify the violator and the state in which the plan applies of his finding.
As noted, defendant objects to the instant litigation asserting that proper notice was not given. It maintains that the court lacks subject matter jurisdiction or that plaintiff has failed to state a claim upon which relief can be granted. The court disagrees.
Subject matter jurisdiction here is proper under 28 U.S.C. § 1345.[3] Further, a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it is clear beyond doubt that the pleader can prove no set of facts which could entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Any doubts which exist must be resolved in favor of the plaintiff. Burns v. Paddock, 503 F.2d 18, 25 (7th Cir. 1974).
In the instant case, it is undisputed that the Administrator advised the defendant and the State of Illinois in August, 1974, that defendant had violated the three initial requirements of the revision to the relevant implementation plan. A civil action is therefore proper under the Act seeking relief for these violations as notice required by Section 113 was clearly given. Plaintiff's complaint, on its face, alleges a violation not only of Rule 203 but also of 40 C.F.R. 52.730(b)(2)(ii).
A more difficult issue is whether plaintiff may also proceed alleging a violation of Rule 203 when as here a notice of violation preceded the date of Rule 203's effectiveness. Assuming arguendo, that the notice of August, 1974, is insufficient, it still does not appear to a certainty that plaintiff is barred. Plaintiff asserts that notice was given both the defendant and the State of Illinois after December 31, 1974. The defendant denies it. The motion to dismiss for failure to state a claim must accordingly be denied at this time.
Alternatively, defendant has moved to stay these proceedings contending that this is a proper case for abstention. It notes that action PCB 76-242 has been brought by the Illinois Environmental Protection Agency before the Illinois Pollution Control Board (IPCB) in which the defendant is charged with identical violations of Rule 203. Defendant further suggests that all issues which will be raised before the IPCB are issues that must be raised here. Finally, *197 defendant suggests that as the IPCB promulgated Rule 203 in the first instance it should be allowed to interpret and apply said rule when (1) Rule 203 is vague and denies due process as applied by plaintiff;[4] (2) the IPCB could eliminate a constitutional issue as the IPCB is required to construe Rule 203 in a manner consistent with due process;[5] and (3) the IPCB's interpretation of Rule 203 should bind plaintiff in its interpretation.
In response, plaintiff maintains that abstention is inappropriate. It contends that different issues will be raised in this court as this action involves the enforcement of Rule 203 and of 40 C.F.R. 52.730(b)(2)(ii). It further argues that Section 113 of the Act establishes the right of federal enforcement of a state implementation plan regardless of concurrent state proceedings. Plaintiff also asserts that the uncertainty of Rule 203 cannot be raised by the defendant in the instant proceeding under the terms of the Act and that, in any event, said uncertainty is not an absolute defense but rather goes only to mitigation. Plaintiff further contends that abstention is improper as defendant has failed to show how an initial interpretation of Rule 203 by the IPCB would render resolution of a constitutional issue unnecessary. Finally, abstention is argued to be improper as jurisdiction is invoked under 28 U.S.C. § 1345.
Initially, the court is of the opinion that abstention may be proper regardless of plaintiff's statutory right to bring a concurrent proceeding in this court under the Act. The mere fact that the government has the authority to bring concurrent litigation does not necessarily suggest that abstention is inappropriate. Rather, a central issue is whether Illinois should be allowed to initially interpret Rule 203.
As noted defendant contends that Rule 203 is vague and denies due process. Plaintiff maintains that these defenses may not be raised here as they are barred by Section 307 of the Act. The court disagrees.
Section 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(1), provides, inter alia, that a petition for review of the action of the Administrator in approving or promulgating a state implementation plan under Section 110(a)(2) of the Act, 42 U.S.C. § 1857c-5(a)(2), may be filed only in the appropriate United States Court of Appeals. Section 307(b)(2) of the Act, 42 U.S.C. § 1857h-5(b)(2), provides, inter alia, that the action of the Administrator to which review could have been obtained under Section 307(b)(1) cannot be subject to judicial review in civil enforcement proceedings. Thus Section 307(b)(1) permits a court of appeals to consider only those matters which the Administrator could consider when it was determined whether to adopt a plan pursuant to Section 110(a)(2). Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). Claims of technological and economic infeasibility cannot be raised in a Section 307(b)(1) proceeding. Id. at 265, 96 S.Ct. 2518. It appears to follow, and in fact has been previously held, that these defenses can be raised in the course of enforcement proceedings. Indiana & Michigan Electric Co. v. Environmental Protection Agency, 509 F.2d 839, 845-47 (7th Cir. 1975).
Plaintiff further maintains that the issues of vagueness and due process should *198 only be considered in mitigation, relevant to the fashioning of an appropriate remedy, and not as absolute defenses based upon constitutional grounds. Again the court disagrees.[6] This is not a case involving the issue of mere technological impossibility. Defendant also argues that Rule 203 is vague because the control device envisioned by the IPCB and the Administrator in 1972 when Rule 203 was adopted has been developed by defendant only to have the federal government in its correspondence of 1974 state that said device does not meet the requirements of Rule 203.
Inter alia, abstention is appropriate when a case presenting a federal constitutional issue might be mooted or presented in a different posture by a state's interpretation of its own uncertain law. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959) and cases cited. Conceding arguendo that a constitutional issue is present, plaintiff maintains that abstention is nonetheless improper. It asserts that here, as in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), abstention should not be permitted as the constitutional issue of vagueness can be resolved without the state's interpretation of Rule 203. It further maintains that abstention is improper as resolution of this constitutional issue must necessarily be decided by the IPCB. The court is of the opinion that these arguments are without merit.
In Baggett v. Bullitt, supra, the United States Supreme Court was faced with a challenge to state loyalty oaths which were attacked as being vague and overbroad. Abstention was argued to be proper because an oath at issue had never been construed by the state courts. This argument was rejected by the Supreme Court as it felt that the oath's vagueness could not be cured by less than "extensive adjudications." Id. at 378, 84 S.Ct. 1316. Further, the issue raised by appellants (plaintiffs) was whether the oaths were vague on their face not whether the oaths permitted plaintiffs to engage in certain definite acts. Id. at 366, 378, 84 S.Ct. 1316. In the instant case, however, defendant is challenging a rule with very limited application and is doing so only as said rule is applied in a concrete circumstance.
The court agrees that abstention would be improper if this court were being asked to allow the state to have the first opportunity to decide a federal constitutional issue. Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). This situation is one where resolution of the vagueness of Rule 203 may be avoided. Rule 203 could be interpreted by the IPCB narrowly or the IPCB might grant defendant a variance. Commonwealth Edison Co. v. Pollution Control Board, 25 Ill.App.3d 271, 281, 323 N.E.2d 84, 90 (1st Dist. 1974), rev'd in part on other grounds, 62 Ill.2d 494, 343 N.E.2d 459 (1976). Because resolution of the constitutional issue may be avoided by the state's interpretation of Rule 203, abstention is proper. Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976).
Moreover, defendant maintains that in all probability plaintiff will be bound by the IPCB's interpretation of Rule 203. Wisconsin's Environmental Decade Inc. v. Wisconsin Power and Light Co., 395 F.Supp. 313, 323 (W.D.Wis.1975). Plaintiff has not disputed this contention. Thus not only could the constitutional issue be avoided but also plaintiff's entire case here could be rendered moot or be significantly altered by the IPCB's interpretation of Rule 203. In such a circumstance, it seems clearly improper for this court to proceed at this time. Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Abstention will avoid not only the possibility of unnecessary resolution of a federal constitutional issue but will also avoid duplicative adjudication involving complex issues of technology which under the Clean Air Act are in large measure the first concern of the state. Union *199 Electric Co. v. Environmental Protection Agency, supra.
Finally, the court is of the opinion that abstention is not improper simply because plaintiff has invoked this court's jurisdiction under 28 U.S.C. § 1345. The United States Supreme Court has recently found jurisdiction under § 1345 and yet affirmed a motion to dismiss, inter alia, because of concurrent state proceedings. Colorado River Water Conservation District v. United States, supra. While abstention was found to be inappropriate in that action, said finding was not based upon the grant of jurisdiction. Id. at 813-17, 96 S.Ct. 1236.
For the reasons stated, it is therefore ordered that defendant's motion to dismiss the complaint for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted shall be, and the same is hereby, denied.
It is further ordered that defendant's motion to stay this action pending resolution of cause PCB 76-242 currently before the Illinois Pollution Control Board shall be, and the same is hereby, granted.
NOTES
[1]  Rule 203(d)(6)(B)(ii)(bb) provides:

On and after December 31, 1974, all coke oven facilities shall be equipped with enclosed pushing and quenching systems with particulate collection equipment, or shall employ alternative methods of comparable effectiveness in reducing emission during pushing and quenching.
[2]  40 C.F.R. 52.730(b)(2)(ii) required that the following steps be taken toward compliance with Rule 203's required emissions systems: (a) advertisement for bids by September 30, 1973; (b) award of contracts by November 15, 1973; (c) initiation of on site construction or installation by March 31, 1974; (d) completion of construction or installation by October 31, 1974; and (e) final compliance by December 31, 1974.
[3]  Title 28 U.S.C. § 1345 provides:

Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.
[4]  Defendant suggests that when the IPCB adopted Rule 203 in 1972, it envisioned defendant's development of the Hanley Allen car as an acceptable control device. However, in its letter of August 16, 1974, the United States Environmental Protection Agency stated that the Hanley Allen car did not meet the requirements of Rule 203.

Defendant further maintains that plaintiff's action violates due process as there is no existing system which is technically feasible of compliance with Rule 203.
[5]  Defendant arrives at this conclusion by asserting that Section 31(c) of the Illinois Environmental Protection Act, Ill.Rev.Stat. ch. 111½, § 1031(c), (also approved by the Administrator as a part of the Illinois implementation plan) allows defendant to show arbitrary or unreasonable hardship as a defense. This is argued to be a statutory incorporation of due process requirements.
[6]  The defense of technological impossibility might in fact only be considered in mitigation. See Indiana & Michigan Electric Co. v. Environmental Protection Agency, supra, at 845. On these facts, resolution of that issue is unnecessary.