Bishop v. Wood, 73-2240.

Decision Date21 June 1974
Docket NumberNo. 73-2240.,73-2240.
Citation498 F.2d 1341
PartiesCarl D. BISHOP, Plaintiff-Appellant, v. W. H. WOOD, etc., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

J. David James, Greensboro, N. C. (Norman B. Smith, Smith, Carrington, Patterson, Follin & Curtis, Greensboro, N. C., on brief), for plaintiff-appellant.

Charles E. Burgin, Marion, N. C. (Dameron & Burgin, Marion N. C., on brief), for defendants-appellees.

Before BRYAN, Senior Circuit Judge, and WINTER and WIDENER, Circuit Judges.

PER CURIAM:

Upon consideration of the record, the briefs, and oral argument, we are of opinion the judgment below was correct, and affirm on the opinion of the district court, 377 F.Supp. 501 (W.D.N.C. 1973).

Affirmed.

WINTER, Circuit Judge (dissenting) :

Unlike my co-panelists, I think that Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1952), not only foreclosed the entry of summary judgment for defendants, but require that, if summary disposition is to be made, plaintiff should be adjudged entitled to recover damages from defendants in an amount subsequently to be assessed. I therefore respectfully dissent.

Plaintiff was employed as a policeman for more than thirty-three months by the City of Marion, North Carolina. He was dismissed by the City Manager upon the complaint of the Chief of Police for unsatisfactory work, failure to attend training schools, "insubordination," and the commission of "acts unsuited to a police officer." Admittedly, the plaintiff was not given notice that there were grounds allegedly sufficient to discharge him, nor was he given a hearing to determine if those grounds were well grounded. He was given written notice of his discharge, but all of the reasons therefor were not set forth. In short, if plaintiff was entitled to be afforded procedural due process, it was clearly denied him; he was given neither notice nor a hearing.

As I read Roth and Sindermann, plaintiff was entitled to recovery under either or both of two theories. In my view, he had been deprived of an interest in "property" and he had been deprived of his "liberty."

Roth and Sindermann make clear that the right to tenure is a "property" interest entitled to the protection of procedural due process. Plaintiff possessed such a right. Under the ordinances of the City of Marion which governed his employment, newly hired policemen are probationary employees for six months. After then they become permanent employees, and a permanent employee may be discharged only if he "fails to perform work up to the standard of the classification held, or continues to be negligent, inefficient, or unfit to perform his duties after he has been first `notified in what way his work is deficient and what he must do if his work is to be satisfactory'." Article II, § 6, Personnel Ordinance of the City of Marion. I can only read this ordinance as giving plaintiff a right to continuing employment unless there be good cause for his dismissal. This continuing right is tantamount to tenure; hence, my conclusion that plaintiff had a "property" right to his employment entitling him to procedural due process protection.

Even if plaintiff lacked a property right in his job, there can be no question that the circumstances of his dismissal from public employment injured certain interests embraced within the concept of "liberty" found in the fourteenth amendment. In Roth, the Court quoted from Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971), that "where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." 408 U.S. at 573, 92 S.Ct. at 2707. Defendants' affidavits admit that plaintiff was dismissed, inter alia, because of "insubordination" and "conduct unsuited to a police officer." Accusations of this nature made against one engaged in the occupation of a law enforcement officer manifestly have a severe adverse impact upon future employment opportunities, and it can be reasonably expected that defendants would disclose these reasons upon the request of a person considering plain...

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6 cases
  • Schoonfield v. Mayor and City Council of Baltimore
    • United States
    • U.S. District Court — District of Maryland
    • August 20, 1975
    ...statutes or rules entitling the citizen to certain benefits. Cf. Bishop v. Wood, 377 F.Supp. 501, 504 (W.D.N.C.1973), aff'd 498 F.2d 1341 (4th Cir. 1974) (per curiam), petition for cert. filed, 43 U.S.L.W. 3608 (U.S. April 16, 1975) (No. 74-1303). Thus, it is settled that "a state employee ......
  • Owen v. City of Independence, Mo.
    • United States
    • U.S. District Court — Western District of Missouri
    • August 2, 1976
    ...Muir v. County Council of Sussex County, 393 F.Supp. 915 (D.Del.1975); Bishop v. Wood, 377 F.Supp. 501 (W.D.N.C.1973), aff'd. 498 F.2d 1341 (4th Cir. 1974), aff'd. 423 U.S. 890, 96 S.Ct. 185, 46 L.Ed.2d 121 (June 8, 1976). Further, to be "stigmatizing" the charges must have been made public......
  • Bishop v. Wood
    • United States
    • U.S. Supreme Court
    • June 10, 1976
    ...enhances nor diminishes petitioner's claim that his constitutionally protected interest in liberty was impaired. P. 349. Affirmed. See 498 F.2d 1341. Norman B. Smith, Greensboro, N. C., for Charles E. Burgin, Marion, N. C., for respondents. Mr. Justice STEVENS delivered the opinion of the C......
  • Canty v. City of Richmond, Va., Police Dept., Civ. A. No. 74-0106-R.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • October 30, 1974
    ...the police officers and the Greyhound defendants under the theory of "pendant party" jurisdiction. See Bishop v. Wood, 498 F.2d 1341, (4th Cir. 1974) (Winter, J., dissenting). Likewise, since the plaintiff appears to be a citizen of New York and the defendant Police Department may be a "cit......
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