Bulloch v. City of Pascagoula

• Decision Date: 19 December 1990
• Docket Number: No. 07-CA-59313,07-CA-59313
• Citation: 574 So.2d 637
• Parties: Terry L. BULLOCH v. CITY OF PASCAGOULA, William H. Pope, Individually; Jim Milstead, Jeff Green, Robert Harris, C.R. Mosely, Vincent Ross, George Touart, Individual Members of Pascagoula City Council, Melvin Mitchell, Interim City Manager.
• Court: Mississippi Supreme Court

Page 637

574 So.2d 637

Terry L. BULLOCH v. CITY OF PASCAGOULA, William H. Pope, Individually; Jim Milstead, Jeff Green, Robert Harris, C.R. Mosely, Vincent Ross, George Touart, Individual Members of Pascagoula City Council, Melvin Mitchell, Interim City Manager.

No. 07-CA-59313.

Supreme Court of Mississippi.

Dec. 19, 1990.

Rehearing Denied Feb. 13, 1991.

William T. Reed, Charles R. McRae, Margaret P. Ellis, McRae & Ellis, Pascagoula, for appellant.

W. Lee Watt, Raymond L. Brown, Brown & Wilkinson, P.A., Pascagoula, for appellees.

Before ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and ROBERTSON, J.

DAN M. LEE, Presiding Justice, for the Court:

This is an appeal by Officer Terry Bulloch from the Jackson County Circuit Court in an action against the city of Pascagoula, the chief of police, members of the city council and the interim city manager alleging wrongful dismissal by constructive discharge. The circuit court on motion by the defendants for dismissal granted summary judgment and dismissed as to all defendants. Being aggrieved, Officer Bulloch appeals to this Court. After a thorough review of the record, briefs and arguments of counsel before this Court, we affirm the action by the lower court and find that as a matter of law, the City of Pascagoula and all defendants were entitled to a judgment of dismissal.

FACTS

The record reveals the facts which gave rise to this case are legion. However, no purpose would be served in an attempt to recount all of the facts, and only those which are necessary to our disposition will be noted here.

In late July of 1986, the Pascagoula Police Department received a call from the Los Angeles County Sheriff's Office which informed Pascagoula police that Los Angeles authorities had recovered a .38 caliber Smith & Wesson revolver pursuant to a routine traffic stop. A weapons check on a national computer network revealed that the revolver was listed as stolen from the Pascagoula, Mississippi, police department. Los Angeles authorities learned from the subject who was arrested that the revolver had been purchased from a pawn shop in Moss Point, Mississippi. This information led the Pascagoula police to Vernon's Pawn Shop where it was learned that the .38 Smith & Wesson revolver identified by serial number D-6817 was traded for a .380 Baretta by Officer Terry Bulloch of the Pascagoula Police Department in September of 1985.

Chief Bill Pope and Major Robert McIlrath of the Pascagoula Police Department met with Officer Bulloch and informed him of the events of the past few days. At that time Officer Bulloch admitted that he had traded a .38 caliber Smith & Wesson to Vernon's Pawn Shop, but he could not remember the circumstances under which he acquired this weapon. Officer Bulloch was soon after placed on administrative leave pending an outside investigation by the Mississippi Department of Public Safety to determine the facts and origin of the revolver which had been traded at the pawn shop.

When Officer Bulloch learned that he was the object of an outside investigation concerning possible conversion of police property to personal use, he obtained legal counsel. Within a matter of days, Officer Bulloch submitted his letter of resignation to the Pascagoula Police Department on August 26, 1986. Officer Bulloch strictly maintains that he resigned pursuant to advice from his attorney. Approximately two months later in November of 1986, Officer Bulloch sought reinstatement in the police department and requested a hearing before the civil service commission. In accordance with Sec. 21-31-23, a discharged civil servant has ten days from the date of discharge to request a hearing before the civil service commission to appeal the decision of discharge. Even though Mr. Bulloch resigned from the police force and the ten day appellate period had passed, Mr. Melvin Mitchell, city attorney, suggested to the Pascagoula Civil Service Commission that no harm would result if the commission agreed to a "courtesy meeting" with Officer Bulloch. This "courtesy meeting" between the commission and Officer Bulloch occurred on November 10, 1986, and it was a private meeting since Officer Bulloch's attorney was not allowed to attend this meeting with his client. Subsequent to this meeting, the commission wrote a letter to Officer Bulloch and informed him that it would not attempt to give a ruling on his case apparently because the ten day appellate period as required by Sec. 21-31-23 had long since lapsed. This prompted Officer Bulloch to request a full hearing, and the commission's response was a one sentence letter to Officer Bulloch's attorney requesting that he state the legal grounds for which his client was entitled to a full hearing.

Eight months later on August 24, 1987, Officer Bulloch filed his amended complaint in the Jackson County Circuit Court. Officer Bulloch alleged violation of his constitutional rights and civil rights under 42 U.S.C. Sec. 1983 ¹ and constructive discharge in that he was forced to resign his job as a narcotics officer with the police department. Officer Bulloch also alleged denial of his procedural due process rights in that he never obtained a hearing to clear his name; libel and slander; suppression of his First Amendment rights; breach of contract; loss of reputation and malicious prosecution.

Considerable discovery ensued, and the case came before the Jackson County Circuit Court for a hearing on a motion by the city for dismissal. After hearing arguments of counsel and reviewing the pleadings, depositions and law on the case, the court granted judgment of dismissal in favor of all defendants and issued findings of facts and conclusions of law on March 31, 1988. Officer Bulloch has appealed from this adverse ruling to this Court.

LAW

We employ a de novo standard of review in reviewing a lower court's grant of a summary judgment motion. Short v. Columbus Rubber and Gasket Co., Inc., 535 So.2d 61, 63 (Miss.1988). Thus, we use the same standard that was used in the trial court. 10 Wright, Miller & Kane, Federal Practice and Procedure Sec. 2716 (1983 and Supp.1988). We must review all evidentiary matters before us in the record: affidavits, depositions, admissions, interrogatories, etc. The evidence must be viewed in the light most favorable to Officer Bulloch, the nonmoving party, and he is to be given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986); Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984). The burden of demonstrating that no genuine issue of fact exists is on the City of Pascagoula. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63-64 (Miss.1988). A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). This Court does not try issues on a rule 56 motion; it only determines whether there are issues to be tried. In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than with the purpose of resolving that issue.

There is no dispute that prior to his resignation in August of 1986, Officer Bulloch was a sixteen year veteran of the police force who had vested permanent employment rights under this state's civil service laws. Miss.Code Ann. Secs. 21-31-13, -17. Since Officer Bulloch attempted reinstatement and alleged procedural due process violations due to civil service's rejection of his request for a full hearing, a glance at Sec. 21-31-23 is appropriate here. Section 21-31-23 describes the civil service employee's rights and responsibilities in seeking redress for a suspension or termination by the hiring authority.

Before removal or discharge of an employee covered under civil service, the employee must be given written notice of the reason(s) for the action and be given an opportunity to respond in writing and orally before the official charged with making the discharge decision. Miss.Code Ann. Sec. 21-31-23 (Rev.1990). Usually, this official will be the city manager. This official has the discretion to conduct a hearing if desired, but once a decision has been made to discharge an employee, the employee has ten days to request an investigation and hearing before the civil service commission. Id. If aggrieved by the civil service hearing outcome, the employee has thirty days to appeal to circuit court, and ultimately appeal may be taken to this Court. Id.

I. Constructive Discharge

Clearly, Officer Bulloch's voluntary resignation and subsequent request for a hearing two months later falls outside of that which is necessary in order to invoke procedural due process guarantees contained in Miss.Code Ann. Sec. 21-31-23. Thus, in order to adhere to the mandates of Sec. 21-31-23 which requires employees to request a hearing within ten days of discharge, Officer Bulloch must successfully assert constructive discharge. Officer Bulloch's response to this recognized failure to timely invoke his rights under civil service is that the threat of prosecution against him was a continuing process, and when he became aware that no criminal action ² was being brought against him, he sought relief via civil service without delay.

"[A] constructive discharge may be deemed to have resulted when the employer made conditions so intolerable that the employee reasonably felt compelled to resign." Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir.1983). Would a reasonable person in the employee's shoes have felt compelled to resign? Shawgo, 701 F.2d at 481 n. 12 (citing Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1077 (5th Cir.1981)). We do not delve into the employer's state of mind or purpose; but rather the focus is on whether or not the employer made conditions intolerable. Shawgo, 701 F.2d at 481 n. 12 (citing Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980)). Additionally,...