Bennett v. Watters

• Decision Date: 12 February 2001
• Docket Number: No. 00-2284,00-2284
• Parties: (8th Cir. 2001) LEE ANN BENNETT, PLAINTIFF - APPELLANT, v. C. R. WATTERS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CITY OF BENTON, ARKANSAS, DEFENDANTS - APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 925

260 F.3d 925 (8th Cir. 2001)

LEE ANN BENNETT, PLAINTIFF - APPELLANT, v. C. R. WATTERS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CITY OF BENTON, ARKANSAS, DEFENDANTS - APPELLEES.

No. 00-2284

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 12, 2001

Filed: August 14, 2001

Appeal from the United States District Court for the Eastern District of Arkansas. [Copyrighted Material Omitted]

Before Loken, Heaney, and Bye, Circuit Judges.

Loken, Circuit Judge

In this action, Lee Ann Bennett challenges her May 1999 termination as the records and fines clerk for the police department in Benton, Arkansas. The district court¹ granted summary judgment to the defendants, Chief of Police C.R. Watters and the City. Bennett appeals, arguing that the court erred in dismissing her procedural due process claim and her claim of age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1). We affirm.

On April 28, 1999, Bennett visited her physician, who advised that she take two weeks off from work due to a bladder infection, depression, and work-related anxiety. The doctor gave Bennett a note saying she should not work for two weeks "for medical reasons." Bennett sent the note to Chief Watters, consistent with Department policy. Watters approved her sick leave until May 7.

The following day, Bennett's immediate supervisor, Cissy Brown, called and told Bennett that an appointment had been scheduled for her with the Department's physician on April 30. After consulting her attorney, Bennett did not keep that appointment. She then received a phone message from Watters and did not return the call. Brown then called again and advised Bennett of another appointment with the Department's physician on May 4. She did not keep that appointment. On May 6, Watters sent Bennett a letter stating that her employment was terminated effective May 7 because she had missed one-half of her scheduled work days in 1999 due to illness, failed to attend two scheduled appointments with the Department's physician, violated a direct order to attend those appointments, and failed "to be reasonably accessible to communicate" with her superiors. This lawsuit followed.

I. The Due Process Claim.

Bennett argues that her abrupt termination without prior notice or an opportunity to be heard violated her Fourteenth Amendment right to procedural due process. This federal constitutional claim depends upon Bennett having a property interest in continued employment under state law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). A property interest arises from a "legitimate claim of entitlement" to continuing employment. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). A public employee has a property interest when there are "contractual or statutory limitations on the employer's ability to terminate an employee," such as a contractual right to be terminated only for cause. Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994).

As a "civilian" employee of the Benton Police Department, Bennett was not part of the civil service system applicable to uniformed police officers. See ARK. CODE ANN. § 14-51-308. For its non-civil service employees, the City is an at-will employer. Under Arkansas law, an at-will employee may be terminated at any time, with or without cause, but the Supreme Court of Arkansas has recognized exceptions to the at- will doctrine. Whether Bennett had a property interest protected by due process turns on whether one of those exceptions applies. See Johnson v. City of W. Memphis, 113 F.3d 842, 843-44 (8th Cir. 1997).² Bennett argues that two of those exceptions apply to create the necessary property interest.

A. The Employee Policy Manual Exception.

Many employers distribute employee handbooks or policy manuals that may contain provisions regarding employee discipline and termination. In recent years, the Supreme Court of Arkansas has considered when such a policy manual will be held to modify the employment at- will relationship. "[W]here an employee relies upon a personnel manual that contains an express provision against termination except for cause he may not be arbitrarily discharged in violation of such a provision." Gladden, 728 S.W.2d at 505(emphasis in original), followed in Robinson, 970 S.W.2d at 297; Crain Indus., Inc. v. Cass, 810 S.W.2d 910, 913 (Ark. 1991); and Smith v. American Greetings Corp., 804 S.W.2d 683, 685-86 (1991). Bennett argues that section 42 of the Benton Police Department Policy and Procedures Manual (the "Policy Manual") is such a provision.

In this regard, section 42 is not a model of clarity. Its ambiguity may be the result of bad drafting, or it may reflect the complexity of writing a policy manual that applies to both civil service and non-civil service employees. Section 42 is entitled Disciplinary Procedure. It begins with a general statement of policy -- "if possible," the Department will "use progressive disciplinary action to bring about change" instead of terminating a productive employee when behavior or performance problems occur. Part I, entitled "Procedures," then declares:

A. When discipline is deemed appropriate, this agency will use a progressive system, when practicable.

B. Furthermore, discipline shall be for cause and shall follow the basic concepts of due process.

* * * * * * * * *

D. Supervisors must ensure that fair enforcement decisions are made in the use of disciplinary or termination action. Fair enforcement incorporates the concepts of equality and equity.... Whatever the administrative action, its amount and degree must be based on equity.

"Equity" is defined in Part II and repeats Parts I.A. and I.B., which refer to progressive discipline, discipline for cause, and due process. The steps of progressive discipline are set forth in Part III. Bennett argues that these provisions expressly restrict the City to disciplining her only for cause, thereby modifying her at-will employment and creating a property interest that is entitled to procedural due process protection under federal law. But this argument ignores Part IV of section 42, which is entitled "Termination" and which provides in relevant part:

All members are subject to termination for the following general conditions:

* * * * * * * * *

D. Termination with fault: Examples include, but are not limited to, insubordination....

E. Termination without fault: Examples include, but are not limited to

* * * * * * * * *

3. decision of the Chief of Police as permitted and retained by law.

Like the district court, we conclude that Part IV.E. of section 42, and particularly Part IV.E.3., defeats Bennett's claim of a property interest under Arkansas law. To modify her at-will employment, the Policy Manual must contain "an express provision against termination except for cause." Gladden, 728 S.W.2d at 505 (emphasis in original). "[A]n implied provision against the right to discharge will not be sufficient to invoke the exception." St. Edward Mercy Med. Ctr. v. Ellison, 946 S.W.2d 726, 729 (Ark. App. 1997). Here, section 42 expressly provides that discipline "shall be for cause," but then expressly provides that termination may be without cause at the discretion of the Chief of Police. A property interest, for federal due process purposes, is the right to continued employment. Whether the employer may terminate without cause is the critical inquiry. That the employee has a contractual right to some form of disciplinary procedure is of no significance if employment itself is terminable at-will. Stow, 819 F.2d at 866-68. Thus, section 42 of the Policy Manual does not provide Bennett the property interest that is necessary to support her procedural due process claim.

B. The Public Policy "Exception."

An at-will employee who is terminated in violation of well-established Arkansas public policy has a cause of action for wrongful termination. The action has been termed an "exception" to the employment-at-will doctrine. See Smith, 804 S.W.2d at 684. Seeking to apply this exception to public employees, Bennett argues that her right to procedural due process was violated because her termination violated the Arkansas public policy that protects an employee's medical privacy by limiting when an employer may insist on a second...