Glenn v. Newman

• Decision Date: 24 March 1980
• Docket Number: No. 78-2146,78-2146
• Citation: 614 F.2d 467
• Parties: Thomas L. GLENN, Plaintiff-Appellant, v. J. Gardner NEWMAN, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 467

614 F.2d 467

Thomas L. GLENN, Plaintiff-Appellant, v. J. Gardner NEWMAN, etc., et al., Defendants-Appellees.

No. 78-2146.

United States Court of Appeals Fifth Circuit.

March 24, 1980.

Richard A. Childs, John C. Swearingen, Jr., Ben B. Philips, Columbus, Ga., for plaintiff-appellant.

Lewis, Hunicutt, Taylor & Daniel, James R. Lewis, LaGrange, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, FRANK M. JOHNSON, Jr., and HATCHETT, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Thomas Glenn brought this civil rights action against numerous defendants seeking damages, and declaratory and injunctive relief under 42 U.S.C. §§ 1983, 1985(3). His claims arise out of his dismissal from the police department of LaGrange, Georgia, where he served as a policeman for eleven years. Named as defendants are the Mayor of LaGrange, the City Manager, the city's Director of Personnel, the Chief of Police and several city councilmen. The district court granted defendants' motion for summary judgment and plaintiff appeals.

Thomas Glenn was a sergeant with the LaGrange Police Department. On October 1, 1976, one of Glenn's superiors discovered him in his car with two young women, one of whom was sixteen years old. On October 5, the sixteen year old girl was reported missing by her parents. On October 6, the same superior who had found Glenn in the car with the girl became suspicious that Officer Glenn knew of the missing girl's location. He questioned Glenn as to whether the girl had contacted him but Glenn refused "to make a statement at (that) time." ¹ Glenn was relieved of duty for the evening. The next day, believing that Glenn was impeding the investigation of the police force, the Chief of Police dismissed Glenn from his job.

The dismissal occurred in the following way. On October 7, 1976, the Chief of Police fired Glenn effective immediately and gave him a written copy of his dismissal notice. Cited as grounds for dismissal were (1) contributing to the delinquency of a minor and (2) conduct detrimental to the good order, efficiency and discipline of the department. ² Pursuant to police department regulations, the Chief of Police filed a written copy of the dismissal with the City Manager. ³

The City Manager met with Glenn on October 18. He was unable to reach an "administrative determination" and recommended that the Mayor and City Council hold a hearing on the matter. ⁴ On November 9, 1976, the Mayor and Council held a public hearing and upheld Glenn's dismissal.

The hearing was held in accordance with Section 5 of the Personnel Policies of the City of LaGrange. This provides that:

The City Attorney . . . shall present substantiating evidence. When it appears to the Mayor and Council that the charges have not been substantiated to their satisfaction, they may take whatever equitable action they deem necessary at the time. When the charges have been substantiated to the satisfaction of the Council, the appealing employee shall then be called upon to answer the charges and offer evidence in his behalf. The Mayor and Council in their discretion may permit rebuttal and surrebuttal.

Following this procedure, the city presented its evidence and Glenn's attorney cross-examined the city's witnesses. Attorneys for both sides then made statements and the Mayor and Council withdrew to deliberate. On their return, the Mayor announced that they had voted to sustain the plaintiff's release and then said, "I think that concludes the hearing." The city attorney noted that the plaintiff had the right to respond to the city's evidence and the plaintiff then presented testimony on his behalf. At the conclusion of all the evidence, the Mayor asked for comments and then "sustained" the previous verdict. One councilman affirmed his previous dissenting vote.

Without conducting a de novo hearing, the district court entered an order granting summary judgment for the city. Assuming without deciding that the plaintiff had a protectable "liberty" or "property" interest, the court nonetheless held that the hearing before the Mayor and City Council fully afforded due process to the plaintiff. It also held that the charge of "conduct detrimental to the good order, efficiency and discipline of the department" was well supported by the evidence pertaining to Glenn's activities during the search for the missing girl and that plaintiff had received sufficient notice of the grounds of his dismissal.

On appeal, Glenn argues that he has a property interest in his job sufficient to warrant the protection of the Fourteenth Amendment and the rights of due process. He further contends that the pretermination procedure given him was constitutionally infirm because it lacked predischarge notice and an opportunity to reply. He argues that the post-termination procedures used by the city were also constitutionally insufficient for several reasons.

Before we reach the question whether the procedures accorded Glenn meet the requirements of due process, it is necessary to determine whether Glenn possessed a property interest in his job. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). A property interest in employment sufficient to invoke procedural due process protections need not be a formal contract or a tenure system, but may be created by ordinance or by implied contract. Id. at 344, 96 S.Ct. at 2077. See Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972) (issue is whether there are "rules or mutually explicit understandings" between the claimant and the governmental employer). In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law. Bishop v. Wood, 426 U.S. at 344, 96 S.Ct. at 2077.

Glenn argues that, although he has no formal contract with the city, the city regulations defining the conditions of his employment and the rules governing his conduct create an expectation of continued employment. The rules provide that a career officer or employee may be separated or discharged from the service for delinquency, misconduct, inefficiency or inability to perform the work satisfactorily. They list a number of violations that may warrant dismissal. See note 2, supra. On their face, the regulations may fairly be read as creating a reasonable expectation of continued employment absent noncompliance with one of the specified reasons. Reference to state law supports a finding of a constitutionally protected property interest in Glenn's employment. Although we do not have any authoritative interpretation of these city regulations by a Georgia state court and the United States District Judge declined to decide the issue, ⁵ the Georgia Supreme Court has held that the civil employment which allows termination only "for cause" creates an expectation of continued employment that is constitutionally protected. Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359, 362 (1975) (construing Civil Service Act of Fulton County that provides: "Any appointing authority may dismiss a subordinate in the classified service for cause"). See Thurston v. Dekle, 531 F.2d 1264, 1272 (5th Cir. 1976), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978). Cf. United Steelworkers v. University of Alabama, 599 F.2d 56, 60-61 (5th Cir. 1979) (construing Alabama law). Reading the regulations in their entirety to glean the expectations of the parties involved, see United Steelworkers v. University of Alabama, supra, we conclude that the specified reasons listed in the regulations are meant to be analogous to allowing termination only for "cause." Indeed, the regulations specifically provide that suspension, listed along with dismissal as a type of discipline to which an employee may be subjected, may occur only "for cause." Moreover, the review procedure provided by the city indicates the mutual understanding that an employee may be discharged only for "cause" and has a right to challenge that "cause." See In re Wiggins, 144 Ga.App. 707, 242 S.E.2d 290 (1978) (due process does not require trial type hearing prior to dismissal; regulation provided "dismissals (of police officers) are . . . made for delinquency, misconduct, inefficiency or inability to perform the work of the position satisfactorily). We find, therefore, that for purposes of this appeal Glenn has demonstrated a property interest in continued employment sufficient to invoke minimum due process protection.

Glenn next contends that the pretermination procedure used by the Chief of Police was constitutionally deficient. The Police Chief presented and discussed the reasons for Glenn's discharge with him in the same meeting that he advised Glenn of his dismissal. Glenn argues that this did not give him adequate notice of the charges against him or an opportunity to rebut them.

It is well established that there must be some form of hearing before deprivation of a constitutionally protected property interest. Board of Regents v. Roth, 408 U.S. 564 at 569-70 & n. 8, 92 S.Ct. 2701 at 2705 & n. 8, 33 L.Ed.2d 548. But the formality and procedural requisites for the hearing can vary, depending on the importance of the interests involved and the nature of the subsequent proceedings. Id. In seeking to minimize the risk of wrongful termination to an employee without burdening the government with elaborate pretermination proceedings, this Court has outlined a procedure to meet minimum due process requirements. Thurston v. Dekle, 531 F.2d at 1273. This includes, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal means giving the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision. Id. We hold that the...