Henderson v. Sotelo, 83-2383

• Decision Date: 03 June 1985
• Docket Number: No. 83-2383,83-2383
• Citation: 761 F.2d 1093
• Parties: Pat HENDERSON, Plaintiff-Appellant, v. Gavino SOTELO, Individually and as City Manager of Harlingen, Tx., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1093

761 F.2d 1093

Pat HENDERSON, Plaintiff-Appellant, v. Gavino SOTELO, Individually and as City Manager of Harlingen, Tx., et al., Defendants-Appellees.

No. 83-2383.

United States Court of Appeals Fifth Circuit.

June 3, 1985.

James A. Herrmann, Harlingen, Tex., for plaintiff-appellant.

Robert L. Galligan, Weslaco, Tex., for Sotelo, et al.

Michael J. Cosentino, Harlingen, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, POLITZ, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from a denial of a preliminary injunction and the dismissal of an action for damages filed pursuant to the due process clause of the United States Constitution and 42 U.S.C. Sec. 1983, based on a finding that appellant had no property interest in continued employment. We affirm.

FACTS AND PROCEEDINGS BELOW

Appellant, Pat Henderson, was employed by the City of Harlingen, Texas, in 1979 as a Building Inspector. In March 1982, he was appointed Chief Building Inspector by the City Manager, Gavino Sotelo. On July 9, 1982, appellant was fired by his immediate supervisor, Mike Perez, the Director of Urban Development. He was given a handwritten memo stating reasons for the decision. Appellant wrote a letter, dated July 10, 1982, to the City Manager responding to the memo. On July 15, 1982, at a meeting with his supervisor and the City Manager, appellant agreed to accept a three-day suspension and a demotion to the position of Senior Building Inspector. On July 16, 1982, appellant received a paycheck which reflected a decrease in salary. On July 19, 1982, he delivered a letter to the City Manager refusing to accept the demotion and suspension and stating that he intended to continue functioning as Chief Building Inspector.

By letter dated July 19, 1982, the City Manager informed appellant that his employment was terminated because he would not accept the agreed upon position. Following this termination, Commissioner James Werner, who had been approached by appellant, unsuccessfully attempted to bring the issue before an executive session of the Harlingen City Commissioners; the Commissioners refused to discuss the matter. No hearing was held on the issue of appellant's dismissal.

On September 21, 1982, appellant filed suit against his direct supervisor, the Director of Urban Development, the City Manager, the City Commissioners, and the City of Harlingen, Texas seeking injunctive relief and damages pursuant to the due process clause of the Fourteenth Amendment of the United States Constitution, and 42 U.S.C. Sec. 1983. Appellant contended that he was summarily dismissed from his position with the City of Harlingen which deprived him of property without due process of law. ¹ Hearing was held on appellant's motion for a preliminary injunction seeking reinstatement pending trial. The district court held that appellant did not have a property interest in his employment and therefore did not have a due process claim. The district court "remanded" to the Harlingen City Commissioners to give "advice and consent" to appellant's termination in accordance with the provisions of the City Charter. On January 19, 1983, the City Commissioners met and voted unanimously to ratify the City Manager's decision to terminate appellant's employment. The district court denied appellant's motion for a preliminary injunction as he could not prevail on the merits of his claim for deprivation of due process. Upon agreed motion of the parties the court further ordered entry of final judgment dismissing appellant's due process claim. For the reasons stated below we affirm the decision of the district court.

DISCUSSION

Appellant claims deprivation of a property interest in continued employment without due process of law. To prevail, appellant must first show that he had a property interest in continued employment. The United States Supreme Court has stated:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

Such property interests are not created by the Constitution. Rather, they are "created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. Such an entitlement may be expressed in a contract (specifying employment for a certain term absent just cause for dismissal), Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), or in a statute (for example, tenure statutes guaranteeing contract renewal absent just cause for dismissal), Slochower v. Board of Higher Education, 350 U.S. 551, 554, 76 S.Ct. 637, 638, 100 L.Ed. 692, modified on denial of reh'g, 351 U.S. 944, 76 S.Ct. 843, 100 L.Ed. 1470 (1956).

Lack of a formal contractual or statutory guarantee of continued employment is relevant to but may not be dispositive of a claim of property interest in continued employment. Perry v. Sindermann, supra, 408 U.S. at 599, 92 S.Ct. at 2698. In Perry, the United States Supreme Court held that a college teacher who had no formal tenure provision in his contract should be allowed to show "the existence of rules and understandings, promulgated and fostered by state officials, that may justify his legitimate claim of entitlement to continued employment absent sufficient cause." Id. at 602-03, 92 S.Ct. at 2700. The Court likened such understandings to implied agreements in contracts and indicated that "the meaning of [the promissor's] words and acts is found by relating them to the usage of the past." Id. (citing 3A Corbin on Contracts Sec. 562 (1960)).

The sufficiency of the claim to a property interest in employment whether created by statute, contract, or implied contract must be decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Where a state legislature by statute has left the decision regarding employment policies to another body, the court must normally look to the pronouncements of that body to determine whether an employee is subject to peremptory discharge or has an expectation of continued employment absent just cause for dismissal, though those pronouncements will be read and applied in the context of state law. See Wells v. Hico Independent School District, 736 F.2d 243, 252-55 (5th Cir.1984); Conley v. Board of Trustees of Granada County Hospital, 707 F.2d 175 (5th Cir.1983); McMillian v. City of Hazlehurst, 620 F.2d 484 (5th Cir.1980); United Steel Workers of America v. University of Alabama, 599 F.2d 56, 60 (5th Cir.1979). By contrast, once it is determined that a property interest exists under state law, then, to determine what process is due for purposes of the due process clause of the Fourteenth Amendment, federal law must be looked to. Cleveland Board of Education v. Loudermill, --- U.S. ----, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985).

Under Texas law, home rule cities, such as Harlingen, generally may create their own offices and establish policies for determining the "manner and mode of selecting officers and prescribing their qualifications, duties, compensation, and tenure of office" in their charters. Tex.Rev.Civ.Stat.Ann. art. 1175 Sec. 1 (Vernon 1963). Thus, such cities may determine by charter whether employment in certain city offices is at will or continuous absent just cause for dismissal, and Texas courts will give effect to such charter provisions. E.g., Ratliff v. City of Wichita Falls, 115 S.W.2d 1153 (Tex.Civ.App.--Amarillo 1938, writ dism'd) (where city charter provided that city recorder shall be appointed for two years, but is subject to removal by board of aldermen at any time, governing board of city had full authority to remove employee with or without cause at any time); City of San Benito v. Cervantes, 595 S.W.2d 917 (Tex.Civ.App.--Eastland 1980, writ ref'd n.r.e.) (where city charter provided for appointment of city manager for term of two years eligible for reappointment indefinitely, but also made him removable at will of city commission on thirty days' notice with right to post-termination hearing, city had right to discharge city manager without cause at will).

Harlingen is a home rule city, and it has established a Charter which creates certain City offices. The Charter provides that the City Manager "shall ... appoint and/or remove all department heads and other key City administrative employees (as designated by ordinance from time to time) with the advice and consent of the Commission." Charter, City of Harlingen, art. IV Sec. 11. The parties stipulated that appellant's position is such a key administrative post, created by ordinance. Code, City of Harlingen, Sec. 8-2 (Ord. No. 62-25, 12-5-62). While this provision does not specifically state whether such employees may be removed only for cause or solely at the will of the City Manager, another Charter provision states that "all appointive officers and employees shall be subject to peremptory discharges as herein provided." Charter, City of Harlingen, art. IV Sec. 14. Thus, the City Manager may peremptorily discharge an appointed officer or employee if he does so with the "advice and consent" of the City Commissioners. Though the precise meaning of this latter phrase is somewhat unclear, the parties stipulated that the advice and consent of the City Commissioners was not obtained prior to appellant's termination. The City contends that the Charter provisions make employment in these positions terminable solely at the will of the City Manager.

In an effort to determine whether the Charter...