Shawgo v. Spradlin
| Decision Date | 28 March 1983 |
| Docket Number | No. 82-1097,82-1097 |
| Parties | Janet SHAWGO and Stanley Whisenhunt, Plaintiffs-Appellants, v. Lee SPRADLIN, Chief of Police, City of Amarillo, Texas, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James C. Harrington, American Civil Liberties Foundation of Texas, Inc., San Juan, Tex., Selden B. Hale, Amarillo, Tex., for plaintiffs-appellants.
Merril E. Nunn, Joe Harlan and Mac W. Hancock, III, Amarillo, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before WISDOM, REAVLEY and TATE, Circuit Judges.
The plaintiffs Janet Shawgo and Stanley Whisenhunt, former police officers employed by the Amarillo Police Department (the Department), sued the City of Amarillo, the Chief of Police, and various members of Amarillo's Civil Service Commission (the Commission) seeking reinstatement and monetary damages. They allege that the defendants, acting in accordance with departmental and city rules, instituted disciplinary action against the plaintiffs for off-duty dating and alleged cohabitation, which invaded their privacy and violated due process. We affirm the district court's determination that the defendants' actions did not afford the plaintiffs a cause of action for a violation of a constitutional right under 42 U.S.C. Sec. 1983, finding that the plaintiffs were afforded a state hearing that satisfied the requisites of constitutional due process and that the disciplinary actions did not violate the plaintiffs' privacy interests.
Shawgo and Sergeant Whisenhunt, non-probationary employees working different shifts, met and began dating while they were employed by the Amarillo Police Department. Shawgo, a patrolwoman with the Department for over a year, was not under the supervision of Whisenhunt, a sergeant who had been with the force for eleven years. Whisenhunt informed his immediate supervisor, Lieutenant Boydston, that he was dating Shawgo. As his relationship with Shawgo became more serious, Whisenhunt informed Lieutenant Boydston that he and Shawgo would probably be spending the night together. The supervising officer told Whisenhunt "that that would probably be fine, [but] that I didn't want the two of them setting up housekeeping." Thereafter, the plaintiffs spent a considerable amount of off-duty hours together, but, as instructed, maintained separate residences. Whisenhunt also received Lieutenant Boydston's permission to share an apartment with John Edwards, a subordinate officer at the Department.
In the fall of 1977, a defendant, Chief of Police Lee Spradlin, heard rumors within the police department that Shawgo and Whisenhunt were living together. The Chief did not confront either Shawgo or Whisenhunt concerning the rumors; nor did he contact their supervisors. Instead, he ordered officers in the Department's Detective Division to conduct a surveillance of Whisenhunt and Shawgo's off-duty activities. From December 1 to December 17, 1977 the investigating officers observed Shawgo's entrances to and exits from Whisenhunt's residence from a car parked in front of the apartment and from the apartment across from Whisenhunt's, which they rented for purposes of surveillance. Their written report to Chief Spradlin detailed the times of Shawgo's visits, but also indicated that Shawgo was maintaining a separate residence.
Based on the investigation report and concerned with moral discipline and the employees' public image, Chief Spradlin recommended that the plaintiffs be disciplined for violations of the General Rules of the Rules and Regulations of the Amarillo Police Department. Shawgo was suspended for twelve days without pay after notification that her "cohabitation" outside marriage violated Section 113, Part 8, proscribing conduct that "if brought to the attention of the public, could result in justified unfavorable criticism of that member or the department." Whisenhunt was also suspended for twelve days and recommended for demotion from sergeant to patrolman for cohabitation with Shawgo and for sharing an apartment and expenses with subordinate officer Edwards. Whisenhunt's acts allegedly violated Section 113, Part 8, quoted above (conduct that "could result in justified unfavorable criticism," if brought to public attention); Section 123, which requires "diligent and competent" performance of duties that are not "otherwise specifically prescribed" in the regulations 1; and Rule XIX, Section 108 of the Personnel Rules of the City of Amarillo, which proscribes "conduct prejudicial to good order." Chief Spradlin did not give the plaintiffs an opportunity to respond to these charges before suspension. No Amarillo police officer had ever before been disciplined for dating or cohabitation.
Shawgo and Whisenhunt requested and received a hearing before the Civil Service Commission of Amarillo, as was their statutory right. The Commission sustained the suspensions and ordered Whisenhunt's demotion to patrolman. The Commission, however, excluded from its hearing evidence of other known, but unpunished instances of interforce dating, cohabitation, and apartment-sharing between superiors and subordinates. There was no evidence at the Commission hearing or at the district court that the plaintiffs did not adequately perform their duties while they were dating, that their conduct distracted from service to the public, or that they violated any state law.
The suspensions and the public Commission hearing generated much publicity in Amarillo. At the later trial in federal district court, Shawgo testified that she encountered hostility and rude remarks concerning her relationship with Whisenhunt within the Department and from the public; she also claimed to have been assigned by herself, instead of with a partner, to isolated field patrols. She resigned on March 8, 1978. After Whisenhunt's demotion and transfer from the active uniform division to the records department, he stamped file folders, wrote up telephone reports, and was isolated from the police officers he had previously supervised. He resigned on February 1, 1978.
The federal district court, after hearing testimony concerning the plaintiffs' civil rights claims, concluded that the temporary suspensions from duty for less than fifteen days did not constitute deprivation of a property interest protected by the Fourteenth Amendment. The district court found that Whisenhunt's demotion similarly did not constitute deprivation of a protected property interest and that Shawgo and Whisenhunt had not been constructively discharged from employment. Despite the absence of a protected interest, the district court addressed the plaintiffs' due process arguments, concluding that the Department's and city civil service rules were not unconstitutionally vague or overbroad on their face or as applied, since the personal relationship between Shawgo and Whisenhunt and Whisenhunt's living arrangement with a male subordinate officer were reasonably within the scope of conduct proscribed by the Department and city rules. The court found that the Commission hearing was fair and without constitutional violation.
On appeal, the plaintiffs claim that they were denied property and privacy interests without due process because they did not have either a pre -suspension opportunity to respond to charges or, subsequently, a fair hearing before the Commission; that their due process rights were violated because regulations under which they were disciplined were unconstitutionally broad and vague and failed to provide them with notice that their lawful, off-duty, discreet and private conduct would render them liable to disciplinary penalties; that their due process rights were violated because the Department's selective enforcement of its vague catchall regulations, as applied, had deprived them of notice because Whisenhunt's superior had tacitly approved their conduct as permissible and because other couples in the Department had engaged in similar activity without penalty; and that the intensive surveillance and investigation of the off-duty activities, conduct unrelated to performance of their office duties, violated their privacy and did not serve a legitimate state interest.
The defendants contend that the plaintiffs have no protected property interest under Texas law, that they received adequate notice and opportunity to be heard before the Commission and the district court, that the Department and City rules prescribing personal conduct are constitutional, and that the compelling state interest in maintaining order within the police department justified any invasion of privacy that may have occurred by the surveillance and surreptitious investigation.
We shall discuss the issues raised by this appeal under three sections of this opinion, as follows: I. Due Process Contentions; II. Due Process--Constructive Discharge; and III. Right to Privacy.
The plaintiffs contend that they were denied due process in being suspended and (in Whisenhunt's case) demoted, without notice that their conduct was subject to penalty and without an opportunity to rebut adequately the charges. We shall divide our discussion of these particular contentions into three sub-parts, A. General Overview; B. The Twelve-Day Suspensions of the Plaintiffs; and C. The Demotion of Sergeant Whisenhunt. (They also contend that, as a consequence of these constitutional violations, they were constructively discharged in violation of due process rights, a contention we shall discuss in Part II, infra.)
The general issue posed by this litigation concerns the federal due process principles that govern a state governmental unit's discipline of its employees. The particular concern is with regard to federal due process considerations involved when a disciplined employee asserts in federal...
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