Gillespie v. City of Macon, Miss.

• Decision Date: 20 February 2007
• Docket Number: Civil Action No. 4:05CV189TSL-LRA.
• Citation: 485 F.Supp.2d 722
• Parties: Rosie GILLESPIE, Plaintiff v. CITY OF MACON, MISSISSIPPI, Willie Dixon and Robert Boykin, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

485 F.Supp.2d 722

Rosie GILLESPIE, Plaintiff v. CITY OF MACON, MISSISSIPPI, Willie Dixon and Robert Boykin, Defendants.

Civil Action No. 4:05CV189TSL-LRA.

United States District Court, S.D. Mississippi, Eastern Division.

February 20, 2007.

COPYRIGHT MATERIAL OMITTED

Jim D. Waide, III, Luke C. Fisher, IV, Walter B. McBride, Waide & Associates, P.A., Tupelo, MS, for Plaintiff.

John Richard Barry, Lee Thaggard, Robert Thomas Bailey, Steven A. Kohnke, Bourdeaux & Jones, Meridian, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, United States District Judge.

This cause is before the court on the motion of defendants City of Macon, Willie Dixon, Jr. and Robert Boykin for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Rosie Gillespie has responded to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion should be granted in part and denied in part, as follows.

On July 5, 2005, after nearly twenty-eight years of employment with the City of Macon, the Board of Aldermen voted to terminate Rosie Gillespie's employment. Though the Board assigned no reason for Gillespie's termination at its meeting in which this vote was taken, Mayor Robert Boykin reported publicly to the news media that she had been terminated for her "job performance." Gillespie alleges, however, that she learned Boykin had stated privately that she was fired because she did not support him in the mayoral election. She claims she also learned that defendant Willie Dixon, a member of the board of aldermen, had told members of the community that she was fired because she was "stealing."

Following her termination, Gillespie's attorney wrote letters to the mayor and to the members of the Board of Aldermen, dated July 28, 2005 and August 5, 2005, requesting notice of the reason for Gillespie's termination, questioning why she had not been given a due process hearing, and asking that the Board reconsider its firing decision. The City responded with a letter from its attorney stating simply that Gillespie would not be rehired.

Eventually, Gillespie filed the present lawsuit on December 13, 2005 alleging § 1983 claims for violation of her due process and equal protection rights, and her First Amendment free speech rights, and asserting, as well, state law claims for breach of contract, slander and defamation, all relating to her termination and events surrounding her termination.

Defendants have moved for summary judgment on all of plaintiff's claims. Their arguments are addressed seriatim.¹

Defendants contend plaintiff has no cognizable claim for any possible alleged procedural due process violation because as an at-will employee, Gillespie did not have a property interest in her position. In her response, Gillespie does not challenge defendants' argument that she had no property interest in her employment, and that as such, she can not maintain a due process claim on this basis. See Farias v. Bexar County Board of Trustees for Mental Health Mental Retardation Servs., 925 F.2d 866, 877 (5th Cir.1991) (holding that because an employee could be discharged at will, he had no protectible property interest and no right to a due process hearing); King v. Newton County Bd. of Sup'rs, 144 Fed.Appx. 381, 384 (5th Cir. 2005) (where county's employment manual made clear that employee was an at-will employee, employee had no property interest in her employment and her § 1983 claim for due process violation failed as matter of law).

Defendants further argue that the evidence does not support a finding that Gillespie's claimed liberty interest was violated, particularly as she has not presented evidence either that she was defamed or that she requested a name-clearing hearing in connection with her termination.

The Supreme Court has recognized a procedural due process right to notice and an opportunity to clear one's name when the government discharges an employee in a manner that puts the employee's "good name, reputation, honor, or integrity ... at stake." See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also Hughes v. City of Garland, 204 F.3d 223, 225-26 (5th Cir.2000). To prevail on her claim that the City infringed upon a cognizable liberty interest by denying her the opportunity to clear her name, Gillespie must show: "(1) that she was discharged; (2) that stigmatizing charges were made against her in connection with the discharge; (3) that the charges were false; (4) that she was not provided notice or an opportunity to be heard prior to her discharge; (5) that the charges were made public; (6) that she requested a hearing to clear her name; and (7) that the employer refused her request for a hearing" Hughes, 204 F.3d at 226. Defendants submit that other than to show she was discharged and was not provided a hearing in connection with her discharge, plaintiff cannot meet any of these elements.

Regarding the second "element, defendants argue, and the court agrees, that Mayor Boykin's statement to the press that Gillespie was non-renewed because of her "job performance" is not sufficiently stigmatizing to give rise to a protected liberty interest. The fact of discharge alone is does not trigger the protections of due process. Rather, "a liberty interest is infringed, and the right to notice and an opportunity to clear one's name arises, only when the employee is `discharged in a manner that creates a false and defamatory impression about him and thus stigmatizes him and forecloses him from other employment opportunities.'" Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir.2006) (citations omitted); see also Felder v. Hobby, 1999 WL 1067892, *4 (5th Cir.1999) (holding that to establish deprivation of liberty interest in reputation without due process of law, plaintiff "must first allege facts establishing that her liberty interest was implicated-namely, that she was terminated based on charges that were (1) false, (2) publicized, and (3) stigmatizing to either her standing or reputation in her professional community or her ability to find other employment"). "In order to acquire a liberty interest protected by the Fourteenth Amendment and give rise to a name clearing hearing, [plaintiff] must establish the":

charges against [her] rise to such a level that they create a "badge of infamy" which destroys the claimant's ability to take advantage of other employment opportunities. Additionally, the claims must be false and the claimant must show that damage to his reputation and employment opportunities has in fact occurred.

Farias, 925 F.2d at 877-78 (quoting Evans v. City of Dallas, 861 F.2d 846, 851 (5th Cir.1988)). Elaborating on this requirement, the Fifth Circuit has explained that the kind of "moral stigma" required to support finding a liberty interest "`usually derives from serious, specific charges and implies an inherent, or at least persistent, personal condition which both potential employers and one's peers would want to avoid.'" Felder, 1999 WL 1067892, at *5 (citing examples, including dismissals for dishonesty, for lying on job application, for having committed a serious felony, for manifest racism, for serious mental illness, and for lack of intellectual ability (as distinguished from performance)) (citations omitted), On the other hand, statements that an employee has been terminated for his or her inadequate job performance, suggest a mere "situational difficulty rather than a `badge of infamy,' public scorn, or the like," id. (citations omitted), and hence do not give rise to a liberty interest.²

In addition to Mayor Boykin's statement to the media, plaintiff grounds her due process claim on statements allegedly made by defendant Dixon to members of the community that Gillespie was fired because she was "stealing." While such a charge is obviously stigmatizing, defendants submit it does not provide a basis for Gillespie's claimed liberty interest because a City can speak only through its minutes, which in this case show only the decision was made not to rehire Gillesipe but give no reason for that decision, and certainly do not contain any allegation that Gillespie was stealing.

Regardless of whether Dixon's alleged statements could provide a basis for a claimed infringement of plaintiffs liberty interest, here, plaintiffs claim cannot succeed because, in the court's opinion, she never requested a name — clearing hearing in connection with this putative charge. As indicated, following the Board's vote, Gillespie's attorney sent letters to the aldermen and to the mayor expressing concern that the public had been given the impression by the mayor's statements to the news media that she was fired because of job performance. Gillespie, through her attorney, requested of the aldermen that she be informed of the reasons why the Board claimed her job performance was deficient, and asked also to be informed "as to why, she did not get any due process hearing before such a charge was' made to the public." In her letter to the mayor, Gillespie complained that the mayor's statements to the media tended to defame her good name in the community and would have a detrimental effect in her quest for other employment, and she requested that the mayor inform her precisely what he meant when he said she was fired because of "job performance" and that he explain why she had not been given any due process hearing "whereby she would be notified of the specific charges and an opportunity to refute these charges." In the court's view, plaintiffs requests in these letters cannot reasonably be construed as a request for a name-clearing hearing, even relating to the mayor's public statement that she was fired because of her "job performance," and certainly not relating to Dixon's alleged statements in the community that she...