Muncy v. City of Dallas, Tex.

• Decision Date: 19 June 2003
• Docket Number: No. 02-10051.,02-10051.
• Parties: Jill MUNCY, et al., Plaintiffs, v. CITY OF DALLAS, TEXAS, et al., Defendants. Robert Jackson, Etc.; et al., Plaintiffs, Robert Jackson, Assistant Chief; Willie Taylor, Plaintiffs-Appellants-Cross-Appellees, v. City of Dallas, Terrell Bolton, Chief of Police, in his individual and official capacities; Teodoro Benavides, City Manager, in his individual and official capacities; Charles Daniels, Assistant City Manager, in his individual and Official capacities, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.3d 394

Jill MUNCY, et al., Plaintiffs, v. CITY OF DALLAS, TEXAS, et al., Defendants.

Robert Jackson, Etc.; et al., Plaintiffs, Robert Jackson, Assistant Chief; Willie Taylor, Plaintiffs-Appellants-Cross-Appellees, v. City of Dallas, Terrell Bolton, Chief of Police, in his individual and official capacities; Teodoro Benavides, City Manager, in his individual and official

capacities; Charles Daniels, Assistant City Manager, in his individual and Official capacities, Defendants-Appellees-Cross-Appellants.

No. 02-10051.

United States Court of Appeals, Fifth Circuit.

June 19, 2003.

Revised June 24, 2003.

Martha Hardwick Hofmeister, Brent William Bailey (argued), Shackelford, Melton & McKinley, Dallas, TX, for Robert Jackson and Willie Taylor.

Thomas L. Case (argued), Barbara K. Salyers, Bell, Nunnally & Martin, Dallas, TX, for Defendants-Appellees-Cross-Appellants.

Appeals from the United States District Court for the Northern District of Texas.

Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

The controversy at bar stems from an employment dispute between Plaintiffs-Appellants, Robert Jackson and Willie Taylor, and the Dallas Police Department. Jackson and Taylor were removed from command positions with the Dallas Police Department and demoted to significantly lower ranks. They initiated this action against Defendants-Appellees, the City of Dallas, Police Chief Bolton, City Manager Benavides, and Assistant City Manager Daniels, asserting, inter alia, 42 U.S.C. § 1983 claims of substantive and procedural due process deprivation, and state law claims for breach of contract and wrongful termination. The district court entered summary judgment against Jackson and Taylor with respect to all claims on the grounds that they lacked a property interest in their employment. We agree with the district court's conclusion that Jackson and Taylor lacked a property interest in their employment, and consequently we herein affirm the district court's grant of summary judgment.

I. The Underlying Employment Dispute

On October 1, 1999, Defendant-Appellee Terrell Bolton was named Chief of Police of the Dallas Police Department (DPD) by Defendant-Appellee City Manager Teodoro Benavides. Soon after his appointment, Bolton endeavored to bring about a significant reorganization of the command structure of the DPD. Among other things, Bolton decided to make personnel changes at the highest level of the DPD. Towards that end, on October 30, 1999, Bolton "removed" nine department members from their command staff jobs. Plaintiffs-Appellants Robert Jackson and Willie Taylor were among those removed from their positions.

Jackson joined the police force in 1972. He steadily made his way up through the department ranks, receiving promotions to the positions of Deputy Chief of Police in 1988, then to Assistant Chief of Police in 1990. In 1991, he was promoted to the position of Executive Assistant Chief of Police, the second highest command position in the DPD. It was from this position that he was removed by Bolton in 1999. Those executives who were removed in Bolton's reorganization were demoted to the highest rank appointment they had held prior to being appointed to the executive ranks. Consequently, Jackson was demoted to the rank of Sergeant.

Taylor joined the DPD in 1971. In 1991 he was promoted to Deputy Chief of Police. In August 1999, Taylor received an award from the DPD for twenty years of perfect attendance. In October of 1999, he was removed from his executive position by Bolton. Taylor was demoted to the rank of Lieutenant.

Jackson and Taylor were manifestly dissatisfied with their demotions. Jackson retired from the DPD rather than continue his employment at the reduced rank. He eventually accepted a job as Chief of Police for the City of Killeen, Texas. Taylor remained with the DPD, but contacted City Manager Benavides requesting both a written statement citing reasons for his demotion, and a hearing to contest his demotion. On November 16, 1999, Benavides responded by informing Taylor he had no right of appeal. Taylor retired from the DPD on March 27, 2001.

On June 21, 2001, the City of Dallas (the City) contacted Jackson and Taylor by letter informing them that they were reinstated in the DPD, at their highest previously held executive positions. They were advised to report for duty on August 15, 2001. However, both Jackson and Taylor have refused reinstatement. They have not returned to their jobs, nor have they accepted checks tendered by the City for back pay and pension contributions. Instead, they have pursued this litigation.

Jackson and Taylor initiated this action in the Northern district of Texas, asserting substantive and procedural due process violations as well as state law claims for breach of contract and wrongful termination. The parties filed cross-motions for summary judgment. The district court granted Appellees' motion for summary judgment on all counts, finding that Jackson and Taylor lacked a property interest in their executive positions with the DPD, and consequently they could not prevail on their substantive or procedural due process claims, nor could they prevail on their state claims. Jackson and Taylor now appeal that finding.

II.

A. Property Interest

The primary question before this Court is whether, at the time of their demotion, Jackson and Taylor were endowed with a property interest in their continued employment at their respective executive ranks with the DPD.¹ Jackson and Taylor assert that they enjoyed a protected property interest in their executive rank positions with the DPD. We find, however, that they did not.

It is well-settled that certain public employment situations may endow an employee with a legally cognizable property interest. Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)(observing that a public employee who is dismissable only for cause has a property interest in his continued tenure); Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). However, a property interest is not incidental to public employment, instead it must be created by an independent source, such as state law. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Conner v. Lavaca Hosp. Dist. 267 F.3d 426 (5th Cir. 2001). In general, we have recognized that a property interest is created where the public entity has acted to confer, or alternatively, has created conditions which infer, the existence of a property interest by abrogating its right to terminate an employee without cause. This abrogation may take the form of a statute, rule, handbook, or policy which limits the condition under which the employment may be terminated, Henderson v. Sotelo, 761 F.2d 1093, 1096 (5th Cir.1985) (quoting Perry, 408 U.S. at 602-03, 92 S.Ct. at 2700); or it may take the form of a more particularized mutual understanding with the employee. Stapp v. Avoyelles Parish School Board, 545 F.2d 527 (5th Cir.1977); Perry, 408 U.S. at 602, 92 S.Ct. at 2700. Ultimately, however, the question of whether a property interest exists is an individualized inquiry which is guided by the specific nature and terms of the particular employment at issue, and informed by the substantive parameters of the relevant state law.

In Texas, there exists a presumption that employment is at-will unless that relationship has been expressly altered in one of two ways. City of Midland v. O'Bryant, 18 S.W.3d 209, 215 (Tex.2000). The at-will relationship may be altered by contract; Conner, 267 F.3d at 426 (citing Loftis v. Town of Highland Park, 893 S.W.2d 154, 155 (Tex.App. — Eastland 1995, no writ)); or by express rules or policies limiting the conditions under which an employee may be terminated; Vida v. El Paso Employees' Federal Credit Union, 885 S.W.2d 177, 182 (Tex.App. — El Paso 1994, no writ).

Here, there is no contract or similarly mutual understanding with the City from which the putative property interest might stem, and so the force of Jackson's and Taylor's arguments here surround their allegations that the City's official personnel policies provided them with a property interest.² Specifically, Jackson and Taylor urge this Court to find that a property interest in their executive rank employment emanated from a myriad of sources, including several chapters of the City Charter, City Personnel Rules, and City Human Resource documents. We, however, find that none of the sources to which Jackson and Taylor direct this Court vest in them a "legitimate right to continued employment." McDonald v. City of Corinth, Tex., 102 F.3d 152, 154 (5th Cir.1996)(citing Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700 (1972)).

1. Section 5

First, Jackson and Taylor argue that Chapter XII, Section 5 of the City Charter demonstrates that they were not at-will employees. Section 5 states:

If the chief of the police department, or any assistant above the rank and grade of captain, was selected to that position from the ranks of the police department and is removed from the position on account of unfitness for the discharge of the duties of the position, and not for any cause justifying dismissal from the service, the chief or the assistant shall be restored to the rank and grade held prior to appointment to the position, or reduced to a lower appointive rank.

Jackson and Taylor interpret this provision as mandating that a chief-level officer may only be removed from his position if he is "unfit" for the duties of the position, and Jackson and Taylor would have us understand unfitness for duty as a quality akin to the property interest-creating, for-cause condition on employment termination.³

This interpretation, however, is not supported in the text of Section 5. Section 5 outlines the conditions in which a chief-level officer who is slated for demotion may be retained in the department: only if the...