Browning v. City of Odessa, Tex.
| Decision Date | 17 May 1993 |
| Docket Number | No. 92-8583,92-8583 |
| Citation | 990 F.2d 842 |
| Parties | Fred BROWNING, Plaintiff-Appellant, v. CITY OF ODESSA, TEXAS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allen R. Stroder, Odessa, TX, for plaintiff-appellant.
Elizabeth Ann Lutton, James M. O'Leary, Shafer, Davis, McCollum, Ashley, O'Leary & Stoker, P.C., Odessa, TX, for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
In late 1990, Fred Browning was terminated as a fire fighter with the Odessa Fire Department. Browning filed this lawsuit, complaining that he was not provided the procedural due process required under the Fourteenth Amendment when he was dismissed. The City of Odessa filed a motion for summary judgment, contending that Browning had no property rights in his position as a fire fighter and that even if he had such a right, the city provided him with all of the procedural safeguards he was due. The district court agreed with both of the city's contentions and granted the city's motion for summary judgment. This Court affirms.
In April 1985, Fred Browning became an employee with the Odessa Fire Department. He proceeded up the ranks in the department to the position of paramedic. Browning had a fine record as a fire fighter until the fall of 1990. In August of that year, Browning's personal problems with a fellow ambulance driver, Todd Tillman, began to affect his work. 1 In November, Browning was suspended without pay for fifteen days because of threats he allegedly made toward Tillman. Indeed, between September and November of 1990, Browning was suspended without pay four times because of insubordination, conduct unbecoming a fire fighter, and/or the failure to follow orders. Throughout this time period, Browning was also reprimanded, both orally and in writing, and was assigned extra duties because of his conduct.
On November 29, 1990, after Browning's fourth suspension without pay, the Battalion Chief, Chief Stovall, and Assistant Fire Chief, Chief Gardner, wrote letters to the Chief of the Fire Department, Chief Wiggs, recommending that Browning be terminated. 2 Chief Wiggs approved of the recommendation. However, prior to terminating Browning, Chief Gardner informed Browning of his recommendation that Browning be dismissed. Gardner also discussed with Browning the reasons for his recommendation and allowed Browning to respond. 3 Browning basically retorted that "he was being picked on." Because that response did not change Gardner's opinion, Gardner dismissed Browning that same day.
In actuality, Browning's pay was not terminated on November 29, 4 for the city's personnel manager, Mr. Coco, insisted that Browning be given a somewhat formal "pretermination" hearing. Chief Wiggs notified Browning of the pretermination hearing on December 4, and the hearing took place on December 7 through December 8, 1990. The assistant city manager, Mr. Raymond Kendall, presided over the hearing, and throughout the hearing, Browning was represented by counsel. Additionally, Browning was allowed to call witnesses 5 and to cross-examine the city's witnesses. 6
Four days after the hearing, Mr. Kendall issued his determination. Kendall decided that Browning should not be terminated, but should be demoted, placed on probation for six months, reassigned to a less favorable shift, and prohibited from swapping shifts with other fire fighters for six months. Kendall also ordered Browning to cut his hair so as to meet Fire Department standards. Further, Kendall determined that Browning should be reimbursed for any expenses Browning incurred in obtaining health insurance between November 29, and the date on which Kendall issued his decision. Finally, Kendall informed Browning that he had five working days in which to appeal the decision.
Protesting the demotion, Browning refused to return to work. He was subsequently dismissed. He failed to appeal his dismissal, but instead brought this cause of action against the City of Odessa, contending that he was denied the procedural due process required by the Fourteenth Amendment. The City of Odessa filed a motion for summary judgment, arguing that Browning possessed no protected property interest in his job. The city further asserted that even if Browning did have a property right, the city had provided him with all of the procedure he was due. The district court agreed, holding that Browning was an employee at will with no property interests in his employment. The court held in the alternative that even if Browning had a property interest, the city had not violated his due process rights in dismissing him. Browning appeals.
This Court reviews the grant of a summary judgment motion de novo, Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988), viewing all of the facts and inferences which arise therefrom in a light most favorable to the non-movant. United States v. Diebold, Inc. 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962).
In this case, Mr. Browning vehemently disputes the district court's finding that he had no property interest in his position with the Fire Department. Indeed, he must do so, for without a property interest in his employment, Browning had no right to procedural due process. Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). However, this Court need not reach that issue, for we find that even if Browning had the requisite property interest in his position as a fire fighter, the City of Odessa provided him with all of the procedural safeguards due him under the Fourteenth Amendment.
The parties do not dispute that prior to dismissing Browning on November 29, Chief Gardner notified Browning of the recommended termination, discussed with Browning the reasons for the recommendation, and allowed Browning to present his side of the story. Further, Browning does not contend that adequate post-termination process was unavailable to him. However, Browning does argue that the November 29 meeting did not provide him with sufficient pretermination due process. We disagree.
The United States Supreme Court decided in Cleveland Board of Education v. Loudermill, that if a governmental employer provides a full post-termination hearing, pretermination due process is limited. 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). In such circumstances, before dismissing an employee, the employer need only provide the employee with written or oral notice of the charges raised against him, explain to the employee the nature of the evidence of those charges, and afford the employee an opportunity to respond. Id.; Helton v. Clements, 832 F.2d 332, 337 (5th Cir.1987); Schaper v. City of Huntsville, 813 F.2d...
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