Hamby v. City of Liberty, Mo

• Court: Missouri Court of Appeals
• Decision Date: 03 August 1999
• Docket Number: WD56352
• Citation: Hamby v. City of Liberty, Mo (Mo. App. 1999)
• Parties: Beverly J. Hamby, Appellant, v. City of Liberty, Missouri, et al., Respondent. WD56352 Missouri Court of Appeals Western District 0

Beverly J. Hamby, Appellant v City of Liberty, Missouri, et al., Respondent

WD56352

Missouri Court of Appeals Western District

08/03/99

Appeal From: Circuit Court of Clay County, Hon. David W. Russell

Counsel for Appellant: Richard Helfand

Counsel for Respondent: Jerome E. Brant

Opinion Summary: Beverly J. Hamby appeals from the summary judgment issued by the circuit court.

Court holds: Respondent granted Appellant a property interest in her continued employment with the Liberty Police Department by virtue of the Department's adherence to its employee Personnel Manual. Appellant was entitled to notice of the specific reason(s) for her discharge and an opportunity to be heard concerning the matter. Appellant did not receive sufficient notice of said reasons.

Spinden, P.J., amd Smith, JJ., concur.

Albert A. Riederer, Judge

Opinion modified by Court's own motion on November 23, 1999. This substitution does not constitute a new opinion.

This case involves a termination of the employment of a police officer by the City of Liberty, Missouri. Upon being terminated, the officer appealed her dismissal to the City Administrator, as provided for the in the employee manual, and the appeal was summarily dismissed. The police officer filed suit in circuit court, where summary judgment was entered for the City. Finding that the police officer had a property interest in continued employment, we hold that she was entitled to notice and an opportunity to be heard prior to final termination, and we, therefore, reverse and remand.

Factual & Procedural Background

Beverly Hamby ("Appellant") was employed as a police officer by the City of Liberty, Missouri ("Respondents" or "City") Police Department from January 28, 1986 until January 3, 1996, on which date the Chief of Police, Bruce W. Davis, notified Appellant in a memo that her employment with the City was being terminated. Among other things, the memo stated:

I have recommended your termination of employment to the City Administrator and he has approved this recommendation. Effective this date you are terminated from employment as a police officer with the City of Liberty. This termination is based upon your failure to successfully complete your performance probationary period . . .

Under the provisions of Section 9.1 of the City of Liberty Personnel Manual you have a right to appeal this matter to the City Administrator within five working days of the action. Should you file such [sic] appeal it should be made in writing and the City Administrator will render a decision on the appeal within five working days.

The dismissal came seven months into an eighteen-month probationary period Appellant had been serving as part of her promotion from police officer to police detective. That "probationary period" referred specifically to Appellant's status as a newly promoted detective. At the time of dismissal, Appellant was not a probationary employee in the context of her general employment with the Police Department. The memo neither elaborated on why or how the Chief decided that Appellant had failed to perform adequately, nor set out any other reasons for her dismissal. Five days later, on January 8, 1996, Appellant appealed by letter from her termination to the City Administrator of Liberty, Gary W. Jackson, pursuant to the Personnel Manual ("Manual") of the City of Liberty. The letter, sent by Appellant's attorney, included the following:

Pursuant to Section 9.1.1 of the Personnel Manual of the City of Liberty, Missouri, Officer Hamby hereby appeals her termination of employment as a result of her alleged failure to successfully complete her performance probationary period. Officer Hamby is hereby requesting that she be reinstated to her position as a Officer with full back pay and benefits . . .

Please contact me upon receipt of this letter so that we can arrange a time for our office to pick up a copy of Officer Hamby's files and to schedule either a meeting to discuss Officer Hamby's files and to schedule either a meeting to discuss Officer Hamby's termination or a time for a Grievance Board Hearing pursuant to Section 9.2 of the Personnel Manual.

Section 9.0 of the Manual sets forth the grievance procedures available to dismissed City employees "who believe that they have been dealt with unfairly or who have alleged that they have been discriminated against . . . ." Sections 9.1.1 & 9.1.2 further provide that such an employee should appeal the matter to the City Administrator who, in turn, will either render a final decision on the appeal or appoint an unbiased representative to hear the appeal. The City Administrator, by letter dated January 11, 1996, wrote to Appellant's attorney: "We are unaware of any provisions of Missouri or Federal law that impose upon the City a duty to allow a board hearing." The letter also went on to say, "your request for a hearing is denied."

Appellant filed a petition for review in the Circuit Court of Clay County pursuant to Missouri Section 536.150.¹ Appellant alleged that at the time of her termination, she was one of only three female officers employed by the Liberty Police Department, and that the decision to terminate her, and the City Administrator's subsequent affirmation of that decision, was "discriminatory based on her sex" and "was in violation of [Appellant's] civil rights to be free from sexual harassment and discrimination." Respondent answered in the form of a general denial that "the decision of the Chief of Police, affirmed by the City Administrator, terminating [Appellant's] employment, was based on [Appellant's] unsatisfactory job performance and repeated failures to address job performance deficiencies brought to [her] attention by her supervisors." Discovery proceeded, and on January 16, 1997, Respondents filed a motion for summary judgment and suggestions in support of that motion. Subsequently, on April 8, 1997, Appellant filed both a response to and suggestions in opposition to Respondents' motion for summary judgment. On April 24, 1997, the circuit court granted Respondents' motion for summary judgment. Appeal was taken. Thereafter, on June 2, 1998, this court dismissed the appeal and remanded the case to the circuit court after ruling that the judgment issued April 24, 1997 was not final. Finally, on August 28, 1998, the Clay County Circuit Court rendered a decision entitled, "Judgment of Dismissal" which read as follows:

[t]he Court takes up [Respondents'] Motion for Summary Judgment. The Court treats said Motion as a Motion to Dismiss as well as for Summary Judgment. After review of the pleadings and the Motions and Suggestions filed herein, the Court enters judgment dismissing the Plaintiff's Petition at Plaintiff's costs.

This appeal ensued.

On appeal, Appellant argues that Judge Russell entered summary judgment in favor of Respondents. Respondents, however, argue that he did not render summary judgment, but rather dismissed the case. The trial court entered a judgment entitled "Judgment of Dismissal" but noted that it was based on Respondent's Motion for Summary Judgment. The trial court also stated that it was treating Respondent's motion both as a motion for summary judgment and as a motion to dismiss. The court then noted that it was entering judgment "after review of the pleadings and motions and suggestions filed therein." Under Missouri Rule of Civil Procedure 55.27, a motion to dismiss is to be treated as one for summary judgment when information outside the pleadings is presented to and not excluded by the court. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo. App. 1998). Since the trial considered "Motions and Suggestions filed" in addition to the pleadings in making its disposition, the judgment entered herein, despite the fact that it was entitled, "Judgment of Dismissal," is to be treated as a summary judgment. Id.

Standard of Review

In reviewing a grant of summary judgment, we examine the entire record to determine whether there is any issue of material fact and whether the moving party was entitled to judgment as a matter of law. Dial v. Lathrop R-II School District, 871 S.W.2d 444, 446 (Mo. banc 1994). We will review the record in the light most favorable to the party against whom summary judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We accord the non-movant the benefit of all reasonable inferences from the record. Id. The propriety of summary judgment is purely an issue of law. Id. Our review is essentially de novo. Id.

Discussion

Respondents claimed in the trial court motion that they were entitled to summary judgment for the following reasons:

1. Appellant was an employee-at-will at the time of her termination; and

2. Appellant's employment was therefore terminable under Missouri law at any time, for any reason, or for no reason at all; and

3. No statute required that Appellant be granted a hearing at the time of the termination of her employment; and

4. Appellant was given all of the process called for under the City's Personnel Manual; and

5. Appellant has no right to review before this court.

Even if Appellant's response to Respondents' motion for summary judgment did not present any genuine issues of material fact, we nevertheless conclude that Respondents were not entitled to summary judgment as a matter of law. We find that Appellant was not an at-will employee as Respondents' claim. We instead find that Appellant had a property interest in her employment thus entitling her to sufficient notice of the reasons for her termination and an opportunity to present her side of the story to her employer before her employment could be terminated. We further find that Appellant was entitled to more process than that provided for under the City's Personnel Manual.

Missouri courts have held that under certain circumstances, a public employee has a constitutionally protected property...