Barnthouse v. City of Edmond, 97,350.

• Court: Supreme Court of Oklahoma
• Citation: 2003 OK 42,73 P.3d 840
• Docket Number: No. 97,350.,97,350.
• Parties: Timothy Ray BARNTHOUSE, Ancel Scott Fees and James Dallas Teel, II, Plaintiffs/Appellants, v. CITY OF EDMOND, a municipal corporation and Dennis Cochran, individually and in his capacity as the Chief of Police of the City of Edmond, Defendants/Appellees.
• Decision Date: 22 April 2003

73 P.3d 840
2003 OK 42

Timothy Ray BARNTHOUSE, Ancel Scott Fees and James Dallas Teel, II, Plaintiffs/Appellants,
v.
CITY OF EDMOND, a municipal corporation and Dennis Cochran, individually and in his capacity as the Chief of Police of the City of Edmond, Defendants/Appellees

No. 97,350.

Supreme Court of Oklahoma.

April 22, 2003.

73 P.3d 843

Philip W. Anderson, Kent R. McGuire, Oklahoma City, OK, for Appellants

Richard J. Goralewicz, Oklahoma City, OK, and Stephen T. Murdock, City of Edmond, Edmond, OK, for Appellees.

OPINION

WATT, Vice Chief Justice.

¶ 1 The dispositive questions in this appeal are: (1) Did Appellants have a property interest in their employment and rank as Sergeants? (2) If so, did Appellees deprive them of that interest and violate their due process rights by demoting them without a hearing? (3) Did the trial court erroneously hold City and Cochran were entitled to judgment as a matter of law? We answer all questions in the affirmative. We reverse the trial court's order granting summary judgment in favor of the City of Edmond and Chief of Police Cochran, and remand to the trial court.

73 P.3d 844

I.

PROCEDURAL BACKGROUND

¶ 2 Timothy Ray Barnthouse, Ancel Scott Fees and James Dallas Teel, II, (Appellants) are police officers for the Appellee, City of Edmond. Their employment is subject to a collective bargaining agreement (CBA), between the City and the Fraternal Order of Police, Lodge No. 136 (F.O.P.), which is governed by the Fire and Police Arbitration Act, 11 O.S.1991 § 51-101 et seq., (the FPAA). On July 30, 1998, Appellant Fees was promoted to Sergeant, and on October 31, 1998, Appellants Teel and Barnthouse were promoted to Sergeant. Effective April 26, 2000, they were notified in writing by City's Chief of Police, Appellee Dennis Cochran, that they were being "demoted" to their previous rank. They filed grievances in accordance with the CBA. The grievances were denied by Cochran and the F.O.P., and they filed this action in district court against City and Cochran, individually and as Chief of Police. Alleging they had a protected property interest in their continued employment as Sergeants and in not being demoted without cause, Appellants sued for the following claims:

a. Violations of their due process rights, under the 14th Amendment of the Constitution of the United States, and Art. 2, § 7 of the Oklahoma Constitution;

b. Relief under 42 U.S.C. § 1983 for depriving Appellants of their constitutional rights pursuant to City's policies and a deliberate choice to demote them;

c. Negligence for breaching their duty to Appellants to administer properly the written examinations and assessment centers in accordance with their own policies and procedures;

d. Breach of contract;

e. Intentional infliction of emotional distress; and

f. Negligent infliction of emotional distress.

They each sought damages in excess of $10,000.00.

¶ 3 Cross motions for summary judgment were filed. The trial court denied Appellants' motion for partial summary judgment and granted the motions filed by City and Cochran. This appeal was brought pursuant to Supreme Court Rule 1.36, Accelerated Procedure for Summary Judgments and Certain Dismissals, 12 O.S.2001, Ch. 15, App. 1.¹ Appellants contend they are appealing only the orders granting Appellees' motions for summary judgment. However, the parties refer to responses and evidentiary matters attached to Appellants' motion for partial summary judgment. Therefore, the issues raised therein are considered to the extent necessary.

II.

FACTUAL BACKGROUND

¶ 4 Appellants took part in the promotional process for the rank of Sergeant, which is

73 P.3d 845

comprised of a written examination and an oral "assessment center". At the time, their rank was Detective. This process, which ended on July 29, 1998, culminated in an "eligibility list" of candidates for promotions to Sergeant. The list ranks the candidates in order of their overall scores, and Appellants' names were among the top four positions.² Another officer, Dennis Dill, took part in the process, but was ranked at the bottom of the eligibility list and did not receive a promotion. He filed a grievance on August 7, 1998, complaining of the manner in which the assessment center was conducted. An arbitration hearing was held on December 17, 1999. On February 23, 2000, the arbitrator held in favor of Dill on his grievance. He ruled the assessment center was conducted improperly, that the resulting eligibility list was invalid, and that the "assessment center" portion of the promotional process must be repeated. It is undisputed that the Arbitrator's ruling did not mention Appellants by name, did not include a finding or recommendation that Appellants' promotions were invalid, and did not order that Appellants must be demoted. Nevertheless, after serving as Sergeants for more than one year, Appellants were notified in writing by Cochran that, effective April 26, 2000,³ they were being demoted as a result of the Dill arbitration award. They were also advised they must participate in the next assessment center, which they did. They did not receive promotions to Sergeant as a result of that promotional process, although two of the Appellants have since been promoted to Sergeant

¶ 5 Appellants alleged in their motion for partial summary judgment their constitutional rights were violated, in that their protected property interests in their employment and rank were taken without due process, contrary to § 1983.⁴ They also alleged Appellees breached their contractual rights not to be demoted without cause. In Cochran's motion for summary judgment, he raised defenses of qualified immunity as to Appellants' § 1983 claim, immunity as an employee of a political subdivision under the Governmental Tort Claims Act and that he was not a party to the CBA as to Appellants' breach of contract claim. In City's motion for summary judgment, it contended the invalid selection process invalidated the promotions, making them void ab initio; that no property interest arose as a result of the selection process; that no property interest exists in a procedure; and that Appellants bear the burden of proof that a property interest exists. City also adopted Cochran's argument as to the qualified immunity defense under § 1983.

III.

DISCUSSION

¶ 6 As a threshold issue, we consider the argument of City and Cochran that Appellants failed to follow the CBA in pursuing their grievance, thus failing to exhaust their remedies under the CBA. Following their demotions, Appellants filed their grievance on May 10, 2000. After Cochran denied the grievance, it was submitted to the F.O.P., which denied it on June 14, 2000. Appellants did not pursue the grievance proceeding when the F.O.P. denied their grievance. They contended, in their response to Cochran's motion for summary judgment, that

73 P.3d 846

they were prohibited from continuing the process because their grievance did not concern a disciplinary action. We agree

¶ 7 The grievance procedure is covered in Article 10 of the CBA. Section 10.3 provides that the "F.O.P. or any employee may file a grievance" and that "[g]rievances shall be presented within fifteen (15) calendar days of said occurrence or after the F.O.P. becomes aware of said occurrence". Section 10.5 provides the manner in which grievances will be processed. In Step 1, the aggrieved employee shall present the grievance to his or her immediate supervisor, who makes a decision in writing within seven calendar days. It provides:

STEP 1. The aggrieved employee(s) shall present the grievance to the immediate supervisor. It shall be reduced to writing citing the provision or provisions of this Agreement alleged to have been violated, be signed by the aggrieved employee(s). The immediate supervisor shall make their (sic) decision in writing to the employee within seven (7) calendar days of the date of presentation of the grievance.

¶ 8 If Step 1 does not settle the grievance, the aggrieved employee follows Step 2, which provides:

STEP 2. If the grievance is not settled in STEP 1, the aggrieved employee(s) shall present the grievance to the F.O.P. Grievance Committee within seven (7) calendar days of the date of the immediate supervisor's response. The F.O.P. Grievance Committee will make a determination as to the validity of the grievance within (15) calendar days. If the grievance is deemed valid then the grievance will proceed to the next step. Grievances filed concerning disciplinary actions may be processed by the employee regardless of the F.O.P. Grievance Committee's ruling. [Emphasis supplied.]

¶ 9 Step 3 provides:

STEP 3. The F.O.P. Grievance Committee or the aggrieved employee(s) shall present the grievance to the Chief of Police within seven (7) calendar days of the date of the Grievance Committee's determination. The Chief of Police shall refer the grievance to a fact-finding committee which shall be composed of four (4) members, two of which shall be selected by the Chief of Police or his designate through impartial, random choice from a list of available officers with supervisory rank, and two of which shall be selected by impartial, random choice by the aggrieved employee(s). The Chief of Police and the aggrieved employee(s) shall have seven (7) calendar days to select the fact-finding committee. The findings and recommendations of this committee must be reached and presented to the Chief of Police within fifteen (15) calendar days from the time of the selection of all parties,....

¶ 10 The emphasized language in Step 2 purports to allow the employee to process a grievance determined invalid by the F.O.P. However, the preceding sentence, "If the grievance is deemed valid then the grievance will proceed to the next step", implies the grievance ends at this step if the F.O.P. finds it is invalid. Considering these sentences together, we interpret the provision to mean that the grievance will end at...