954 F.2d 1511 (10th Cir. 1992), 90-6267, Driggins v. City of Oklahoma City, Okl.

Docket Nº90-6267.
Citation954 F.2d 1511
Party NameSylvia DRIGGINS, Plaintiff-Appellee, v. CITY OF OKLAHOMA CITY, OKLAHOMA, Defendant-Appellant.
Case DateJanuary 27, 1992
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1511

954 F.2d 1511 (10th Cir. 1992)

Sylvia DRIGGINS, Plaintiff-Appellee,

v.

CITY OF OKLAHOMA CITY, OKLAHOMA, Defendant-Appellant.

No. 90-6267.

United States Court of Appeals, Tenth Circuit

January 27, 1992

Page 1512

Gerald S. Rakes (James G. Hamill, Mun. Counselor, Oklahoma City, Okl., with him on the briefs), Asst. Mun. Counselor, Oklahoma City, Okl., for defendant-appellant.

Richard S. Strauss (Michael Avant-Pybas, Mustang, Okl., on the brief), Hochstadt, Straw & Strauss, Denver, Colo., for plaintiff-appellee.

Before MOORE, and TACHA, Circuit Judges and KANE, District Judge. [*]

TACHA, Circuit Judge.

The appellant, City of Oklahoma City (City), appeals from a jury verdict in favor of the plaintiff, Sylvia Driggins. The jury awarded Driggins $12,500 on her claim pursuant to 42 U.S.C. § 1983 that the City terminated her employment without affording her due process. On appeal, the City argues that the trial judge erred in submitting to the jury the questions of whether Driggins had a protected property interest in her employment and whether she received due process when she was terminated. We exercise jurisdiction under 28 U.S.C. § 1291 and reverse.

BACKGROUND

Driggins was employed by the City of Oklahoma City for approximately six years prior to April 30, 1986, when she was terminated. She was employed as a Human Resources Specialist in the Human Resources Department. Driggins brought this § 1983 action against the City and claimed she was deprived of her property interest in continued employment without due process in violation of the Fourteenth Amendment.

As a public employee, Driggins is entitled to procedural due process if she can show that she was deprived of a property interest. Derstein v. Kansas, 915 F.2d 1410, 1413 (10th Cir.1990) (citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)), cert. denied, --- U.S. ----, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991). In a motion for summary judgment, and again during the trial, Driggins advanced three arguments in support of her claim to a property interest: (1) the city council, with authority from the city charter of the City of Oklahoma City ("city charter"), promulgated personnel policies that gave permanent employees the right to be terminated only for cause; (2) a mutual understanding existed between Driggins and the City that she would be a permanent employee and would be fired only for cause; and (3) Driggins--as an employee of a federally funded Comprehensive Employment & Training Act (CETA) program, 29 U.S.C. §§ 802-992 1--had a property interest by virtue of CETA's mandate that participating state and local governments adopt a merit personnel system.

The City maintains that Driggins is an at-will employee because the city charter provides that the city manager shall have exclusive control of personnel and that terminations shall be made by the city manager "solely for the good of the service" or in the "interests of the service." In its summary judgment motion and in its motion for a directed verdict, the City asked the judge to rule that Driggins cannot have a property interest in her employment in light of the express provisions in the city charter.

The City argues that the existence of Driggins's property interest should have been determined by the judge as a matter of law and that the judge erred in submitting the issue to the jury. On appeal, the City asks this court to rule that the existence of a protected property interest in employment is always a matter of law for the judge to decide. The City also argues that the judge, not the jury, should have decided whether the City's termination procedure amounted to a violation of due

Page 1513

process. We decline to adopt a broad rule that questions of a property right in employment are always issues of law for the judge. We conclude, however, that in this case the judge erred in allowing the jury to resolve the disputed legal issue of whether Driggins could have a property interest in her employment in light of the provisions of the city charter. Because we conclude that Driggins does not have a protected property interest in her employment, we need not decide whether the City's termination procedure violated due process.

DISCUSSION

The jury instruction transcript reveals that the trial court allowed the jury to decide the legal question of whether a property interest could be created, based on any of the plaintiff's theories, in light of the express provisions of the city charter. The judge twice informed the jury of the City's position "that the city charter operated to negate any employee's...

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28 practice notes
  • 883 P.2d 500 (Colo.App. 1994), 93CA0197, Holland v. Board of County Com'rs of County of Douglas
    • United States
    • Colorado Court of Appeals of Colorado Fifth Division
    • March 24, 1994
    ...P.2d 748 (1978). The existence of a property interest in employment is, likewise, a question of law. Driggins v. City of Oklahoma City, 954 F.2d 1511 (10th Cir.1992). In order to determine the intent of a contract, it must be construed as a whole and effect must be given to every provision,......
  • 74 F.3d 1002 (10th Cir. 1996), 94-6389, Hays v. City of Pauls Valley
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • January 23, 1996
    ...bind the city." Graham v. City of Oklahoma City, 859 F.2d 142, 146 (10th Cir.1988); see also Driggins v. City of Oklahoma City, 954 F.2d 1511, 1514-15 (10th Cir.1992). Thus Hays was an at-will employee, and the City had the power to dismiss him without cause. Accordingly, the district ......
  • 120 F.Supp.2d 938 (D.Kan. 2000), 99-2406, Sims v. Unified Government of Wyandotte County/Kansas City, Kansas
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • August 14, 2000
    ...in a salary increase of which she could not be constitutionally deprived without due process. See Driggins v. City of Oklahoma City, 954 F.2d 1511, 1515 (10th Cir.1992) ( "Mutually explicit understandings can create a property interest ... by means of an implied contract.") ( quot......
  • 933 P.2d 952 (Okla.Civ.App. Div. 1 1997), 87705, Kester v. City of Stilwell
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Civil Appeals of Oklahoma
    • January 7, 1997
    ...to terminate at will, rather adopting a specific procedure to discipline and/or terminate. Cf., e.g., Driggins v. City of Oklahoma City, 954 F.2d 1511 (10th Cir.1992) (where terms of employee dismissals are explicitly stated in city charter, city officials may not alter or otherwise restric......
  • Request a trial to view additional results
28 cases
  • 883 P.2d 500 (Colo.App. 1994), 93CA0197, Holland v. Board of County Com'rs of County of Douglas
    • United States
    • Colorado Court of Appeals of Colorado Fifth Division
    • March 24, 1994
    ...P.2d 748 (1978). The existence of a property interest in employment is, likewise, a question of law. Driggins v. City of Oklahoma City, 954 F.2d 1511 (10th Cir.1992). In order to determine the intent of a contract, it must be construed as a whole and effect must be given to every provision,......
  • 74 F.3d 1002 (10th Cir. 1996), 94-6389, Hays v. City of Pauls Valley
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • January 23, 1996
    ...bind the city." Graham v. City of Oklahoma City, 859 F.2d 142, 146 (10th Cir.1988); see also Driggins v. City of Oklahoma City, 954 F.2d 1511, 1514-15 (10th Cir.1992). Thus Hays was an at-will employee, and the City had the power to dismiss him without cause. Accordingly, the district ......
  • 120 F.Supp.2d 938 (D.Kan. 2000), 99-2406, Sims v. Unified Government of Wyandotte County/Kansas City, Kansas
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • August 14, 2000
    ...in a salary increase of which she could not be constitutionally deprived without due process. See Driggins v. City of Oklahoma City, 954 F.2d 1511, 1515 (10th Cir.1992) ( "Mutually explicit understandings can create a property interest ... by means of an implied contract.") ( quot......
  • 933 P.2d 952 (Okla.Civ.App. Div. 1 1997), 87705, Kester v. City of Stilwell
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Civil Appeals of Oklahoma
    • January 7, 1997
    ...to terminate at will, rather adopting a specific procedure to discipline and/or terminate. Cf., e.g., Driggins v. City of Oklahoma City, 954 F.2d 1511 (10th Cir.1992) (where terms of employee dismissals are explicitly stated in city charter, city officials may not alter or otherwise restric......
  • Request a trial to view additional results