Brockell v. Norton

• Decision Date: 22 September 1982
• Docket Number: No. 81-1842,81-1842
• Citation: 688 F.2d 588
• Parties: Eric BROCKELL, Appellant, v. Alma NORTON; Bill Turner; Ronald Storey; Joyce B. Hall; O. V. Adams; Ed L. Wallace; Bonner Ford, Individually and in their own official capacity as Mayor and City Council Members of the City of Marvell; and The City of Marvell, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 588

688 F.2d 588

Eric BROCKELL, Appellant, v. Alma NORTON; Bill Turner; Ronald Storey; Joyce B. Hall; O V. Adams; Ed L. Wallace; Bonner Ford, Individually and in their own official capacity as Mayor and City Council Members of the City of Marvell; and The City of Marvell, Appellees.

No. 81-1842.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1982.

Decided Sept. 22, 1982.

Gill, Skokos, Simpson, Buford & Owen, Little Rock, Ark., for appellees.

L. T. Simes II, West Helena, Ark., for appellant.

Before HEANEY and ARNOLD, Circuit Judges, and COLLINSON, ^* Senior District Judge.

HEANEY, Circuit Judge.

The appellant, Eric Brockell, brought this action under 28 U.S.C. § 1331, and 42 U.S.C. §§ 1983 & 1985, contesting his discharge from his job as a radio operator-dispatcher for the police force of the City of Marvell, Arkansas. He alleged deprivation of his constitutional rights under the First, Fifth and Fourteenth Amendments of the federal Constitution. The district court ¹ issued findings of fact and conclusions of law adverse to Brockell, and a judgment dismissing the complaint was entered on July 15, 1981. Brockell appeals this judgment; we remand for further proceedings in connection with his First Amendment claim.

I. BACKGROUND

Brockell was hired as a radio operator-dispatcher for the Marvell police force on July 1, 1978. Up until the time of his discharge, he was a full-time employee of the City under an oral agreement which had no definite term of duration. In February of 1980, Brockell learned that an officer of the Marvell, Arkansas, Police Force possessed a document which Brockell reasonably and in good faith believed was a copy of the certification test to be given to that officer and others by the Arkansas State Law Enforcement Standard Commission. Brockell almost immediately went to the Chief of Police for the City of Marvell, Bill Erickson, with this information. When it appeared to Brockell that nothing was going to be done about this apparent impropriety in police conduct, he made an anonymous phone call on February 29, 1980, reporting the incident to Captain James Virden The mayor and the city council learned of Brockell's report to Captain Virden on March 11, 1980. At an executive session on that day, the mayor and the council members-appellees herein-voted to terminate Brockell's employment because he violated the "chain-of-command" complaint procedure. Brockell received no notice or hearing prior to the vote to discharge him. Shortly after his termination, he drafted a letter of recommendation to assist him in seeking future employment, which was signed by the individual appellees. The letter stated that Brockell did his work well and recommended him for similar employment. It also stated that the reason for his dismissal was that he had reported that two police officers had a copy of an exam paper from the police school that they were attending.

                of the Pine Bluff Police Department.  2  At all times relevant to these events, an unwritten "chain-of-command" rule was in effect in the Marvell Police Department; this rule generally required employees of the force to bring official matters to the Chief of Police initially, and then to the mayor, Alma Norton, if any matter was not resolved by the Chief
                

The present action was filed on June 12, 1980. The district court, sitting without a jury, found that Brockell had no property interest in continued employment with the City which would accord him procedural due process protection under the Fourteenth Amendment. It also found the circumstances of his dismissal did not breach a constitutionally protectable liberty interest because private threats made by the mayor to Brockell concerning her ability to frustrate his future employment opportunities with the state were never carried out. Brockell appeals from these conclusions, again asserting his procedural due process claims, his First Amendment claim of interference with his right to free speech, and trial error based on some minor findings of fact made by the district court. ³

II. PROCEDURAL DUE PROCESS CLAIMS

We agree with the holding of the district court that Brockell did not have a protectable property interest in his job and that his liberty interest to pursue future employment was not breached in connection with his dismissal.

A. Property Interest Claim.

In contesting a discharge from employment by a state entity, the discharged employee may assert procedural due process rights under the Fourteenth Amendment of the federal Constitution if he or she establishes that a property interest in the state position existed. ⁴ Such a protectable property interest is not an automatic consequence of all public employment. For the purposes of the Fourteenth Amendment, a property interest does not exist unless the employee has a "legitimate claim of entitlement" to the public job. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

In the present case, the district court applied the proper standard in determining whether Brockell had such a property interest in his job of radio operator-dispatcher for the City of Marvell Police Department:

the court looked first to Brockell's contract and Arkansas state law to determine if there were any "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. The parties stipulated that Brockell worked under an oral agreement with no definite term of duration. Brockell concedes that there was no Arkansas law which protected his employment from immediate termination. Cf. Gilbreath v. East Arkansas Planning Commission & Development District, Inc., 471 F.Supp. 912, 923 (E.D.Ark.1979) (absence of contract with specific term of duration makes employment relationship terminable at will of either party under Arkansas law). Since Brockell's oral contract of employment contained no term of duration and Arkansas law provided no legitimate expectation of his continued employment, neither of these sources are sufficient to support his property interest due process claim.

A plaintiff may alternatively establish a property interest by showing "mutually explicit understandings" or common practices and agreements derived from the employer-employee relationship which would create a sufficient expectancy of continued employment to merit some due process. Perry v. Sindermann, 408 U.S. 593, 600-603, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972); Kyles v. Eastern Nebraska Human Services, 632 F.2d 57, 60-61 (8th Cir. 1980). Brockell presented no evidence showing that any such understandings or practices existed. We therefore agree with the finding of the district court that there was no custom or practice in the City of Marvell Police Department on which to base his property interest claim.

Brockell's reliance on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), to support the contention that the due process clause protects property interests independent of their creation by state law or otherwise is misplaced. The Supreme Court in Owen dealt with the issue of a municipality's immunity from suit under 42 U.S.C. § 1983. In that context, the Court stated that federal law of sovereign immunity would control over any assertion of a state immunity defense. Owen v. City of Independence, supra, 445 U.S. at 647 n.30, 100 S.Ct. at 1414 n.30. Contrary to Brockell's argument before the district court and on appeal, this language is not applicable to the content of the property interests protected under the due process clause. The Owen Court did not even attempt to discuss the elements required to establish a property interest procedural due process claim. See Owen v. City of Independence, supra, 445 U.S. at 633 n.13, 100 S.Ct. at 1406 n.13 (accepting conclusion of Court of Appeals that petitioner had been deprived of liberty without due process of law) and id. at 630 n.10, 100 S.Ct. at 1405 n.10 (citing district court finding that petitioner had no constitutionally protectable property interest since he was an untenured employee); cf. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709 ("Property interests, of course, are not created by the Constitution.").

The district court correctly considered each of these assertions of Brockell's property interest procedural due process claim. We therefore affirm its holding that Brockell had no property interest in continued employment within the meaning of the Fourteenth Amendment.

B. Liberty Interest Claim.

Brockell further argues that the circumstances of his discharge violated his procedural due process rights because his dismissal, without an opportunity to respond to the accusations against him, stigmatized him and thus impaired his ability to obtain other employment. This argument apparently rests on a liberty interest procedural due process right which gives the public employee some opportunity to hear and respond to employer accusations which impugn her or his "good name, reputation, honor, or integrity * * *," Board of Regents v. Roth, supra, 408 U.S. at 573, 92 S.Ct. at 2707.

In the instant case, Brockell relies primarily on statements made privately to

                him by the mayor in connection with his discharge as the basis for his liberty interest claim.  5  These statements were basically threats concerning actions the mayor might take to frustrate Brockell's chances for future employment in the law enforcement field in the State of Arkansas.  We fail to see how these threats, absent any action taken to carry them out, invade Brockell's liberty interests without due process of law.  Liberty interests are not violated by the private disclosure of reasons for discharge from public employment "when there is no public disclosure of the reasons for the discharge."  Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976).  Private threats made in

...