809 F.2d 255 (5th Cir. 1987), 85-2723, Simien v. City of San Antonio

Docket Nº:85-2723.
Citation:809 F.2d 255
Party Name:Anqunett SIMIEN, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, Defendant-Appellee.
Case Date:February 06, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 255

809 F.2d 255 (5th Cir. 1987)

Anqunett SIMIEN, Plaintiff-Appellant,


CITY OF SAN ANTONIO, Defendant-Appellee.

No. 85-2723.

United States Court of Appeals, Fifth Circuit

February 6, 1987

Rehearing and Rehearing En Banc March 5, 1987.

Page 256

James A. Kosub, San Antonio, Tex., for plaintiff-appellant.

Steve Arronge, Asst. City Atty., City of San Antonio, San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GOLDBERG and GEE, Circuit Judges.

CLARK, Chief Judge:

Plaintiff Anqunett Simien appeals the district court's judgment in favor of the defendant, the City of San Antonio, on Simien's claims of sex discrimination and violation of her constitutional right to equal protection. She also asserts the district court erred in awarding only nominal damages for the City's violation of her right to procedural due process, and erred in deciding that she was not the prevailing party and therefore not entitled to attorneys fees. The city's actions in abruptly terminating an apparently satisfactory municipal employee for a minor, technical infraction appear arbitrary, uncaring and petty but not unconstitutional and therefore are beyond the remedial reach of 42 U.S.C. Sec. 1983. We affirm the judgment in all respects.

I. Background

In 1977 the City of San Antonio adopted a rule requiring all of its non-exempt permanent employees to live within the city limits. The residency requirement was included in the personnel rule book but was not enforced until 1980 when the City Council decided to order its enforcement.

All new employees were required to complete a form that included a box indicating whether the person resided in the city. If the new employee indicated he or she did not live in the city, the employee received two notices during the six month probationary period warning that permanent employees would be terminated for noncompliance with the residency requirement. Notices were not sent to those who checked the box indicating they already resided in the city.

Simien was hired in 1982. She had recently moved to the San Antonio area and believed her home was located within the city limits because her mailing address was San Antonio, Texas. In fact, Simien's residence was a couple of blocks outside the city limits in an unincorporated area. Believing she lived in the city, Simien checked the box that indicated she already resided in San Antonio. As a result she did not receive warning notices during her probationary period. Indeed, Simien never received any notice that she was not in compliance with the residency requirement.

On June 6, 1983, six months after Simien had become a permanent employee, she was handed a termination letter based on her noncompliance with the residency requirement, and immediately escorted off the premises by a police officer. Simien appealed to the city's Civil Service Review Board and was given a post-termination hearing. The hearing was originally scheduled for June 21, 1983, but was delayed at Simien's request. The Board recommended that the dismissal be upheld.

Page 257

Simien then brought this suit asserting the residency requirement discriminated on the basis of sex because city departments that were predominantly male, such as the police and firefighters, were exempted from the requirement. She also asserted that permanent male employees were permitted to move into the city rather than being terminated.

After the trial began, the district judge invited Simien to amend her complaint to include claims that her constitutional rights to equal protection and due process had been violated. Simien did so.

II. Sex Discrimination

The district court held that Simien failed to prove the residency requirement was discriminatory either in intent or in effect. The court found that the police and fire departments were exempted due to their collective bargaining agreements, that other employees were grandfathered into exempt status due to the length of their employment with the city, and that, overall, more men were subject to the requirement than women. These findings are not clearly erroneous.

The record demonstrates that men who violated the residency requirement were terminated. The only exception was a male employee who was given the opportunity to move into the...

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