Hennigh v. City of Shawnee, 97-6239

• Decision Date: 09 September 1998
• Docket Number: No. 97-6239,97-6239
• Citation: 155 F.3d 1249
• Parties: 159 L.R.R.M. (BNA) 2236, 98 CJ C.A.R. 5063 Thomas B. HENNIGH, Plaintiff--Appellant, v. CITY OF SHAWNEE, Terry Powell, and Hank Land, Defendants--Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

155 F.3d 1249

159 L.R.R.M. (BNA) 2236, 98 CJ C.A.R. 5063

Thomas B. HENNIGH, Plaintiff--Appellant, v. CITY OF SHAWNEE, Terry Powell, and Hank Land, Defendants--Appellees.

No. 97-6239.

United States Court of Appeals Tenth Circuit.

Sept. 9, 1998.

John F. Percival of Beech Edwards & Percival, PLLC, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Margaret McMorrow-Love, Oklahoma City, Oklahoma, for Defendants-Appellees.

Before BALDOCK, McKAY, and KELLY, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff-Appellant, Mr. Thomas Hennigh, alleges that Defendants-Appellees, the City of Shawnee, Oklahoma [the City]; Hank Land, the City's Chief of Police; and Terry Powell, the City Manager, deprived him of his constitutional rights in violation of 42 U.S.C. § 1983 by demoting him without following the procedures outlined in a collective bargaining agreement [CBA] signed by the City of Shawnee and the police officers' union.

Plaintiff is an employee of the City of Shawnee Police Department. As a police officer, he is subject to and protected by a collective bargaining agreement negotiated by the International Union of Police Associations, Shawnee Local No. 3, AFL-CIO [the Union], and the City. Prior to May 1996, Plaintiff held the rank of lieutenant. In early 1996, two of the City's female employees reported, when queried, inappropriate gender-based conduct by Plaintiff. See Jt.App., Doc. V at E, H. The women signed statements detailing Plaintiff's alleged inappropriate conduct. See id. One of the statements was made "[u]nder protest," and the other complainant stated that she did not wish to pursue any civil, criminal, or disciplinary action against Plaintiff. Id., Doc. V at G, H. Plaintiff was suspended from his job, with pay, based upon the initial investigation of these complaints. See id., Doc. V at B & J; Doc. VI at A.

Pursuant to the CBA, Plaintiff was notified of his right to a hearing on the charges against him before the Police Review Board [Review Board]. See id., Doc. V at L, M, N. At the Review Board hearing, counsel for Plaintiff requested that the charges against him be dropped because the complaints were not in the form of affidavits signed and sworn under oath. See id., Doc. V at Q. The Review Board dismissed the charges because the City "failed to follow ... Article 6 Section 1 of the [CBA] in reference to formal written (notarized) complaints for which administrative action may be taken or reviewed." Id., Doc. V at R.

After the Review Board refused to hear evidence on the charges against Plaintiff, the City Manager met with the female employees who had signed the statements alleging inappropriate conduct by Plaintiff. See id., Doc. V at U. The City Manager also allowed Plaintiff and his counsel an opportunity to respond to the allegations before any discipline was imposed. See id. The Police Chief recommended to the City Manager that Plaintiff be disciplined for improper conduct on duty. See id., Doc. V at V. The City Manager agreed with the recommendation and imposed discipline in the form of a reduction in rank from lieutenant to sergeant, one year of probation, and a requirement that Plaintiff attend remedial sexual harassment training. See id., Doc. V at W.

Plaintiff filed suit, claiming that Defendants had violated his constitutional rights. See id., Doc. I. Plaintiff states that Defendants deprived him of his right to procedural and substantive due process, arguing that his "property rights in his rank as secured by the Collective Bargaining Agreement have been impaired." Id. He also contends that Defendants discriminated against him by denying him equal protection of the law. See id. Plaintiff filed an additional claim for violation of his First Amendment rights and also asserted a state law breach of contract claim. See id. Defendants filed a collective Motion for Partial Summary Judgment, requesting summary judgment on all claims except the First Amendment and pendant state contract claim. See id., Doc. III.

The district court granted Defendants' Motion for Partial Summary Judgment, holding that: (1) because Plaintiff did not have a property interest in his rank, he was not entitled to assert a claim of denial of procedural or substantive due process; (2) Plaintiff's equal protection claims failed because the City's actions were rationally related to a legitimate municipal goal and because Plaintiff failed to present evidence that the City had selectively enforced its policies; and (3) the individual Defendants were entitled to qualified immunity because Plaintiff had not proved any violation of a clearly established constitutional right. See id., Doc. VII. After the entry of the order granting Defendants partial summary judgment, Plaintiff stipulated to the dismissal of his claims that were not disposed of by that order, i.e., his First Amendment and breach of contract claims. See id., Doc. XI.

Because the district court had dismissed some of Plaintiff's claims on the merits but dismissed others without prejudice, all claims against all parties had not been decided on the merits and we could not properly assert appellate jurisdiction. See Heimann v. Snead, 133 F.3d 767, 769 (10th Cir.1998) ("Parties may not confer appellate jurisdiction upon [this court] by obtaining a voluntary dismissal without prejudice of some claims so that others may be appealed."); Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147, 148 (10th Cir. 1992) ("[W]hen a plaintiff voluntarily requests dismissal of her remaining claims without prejudice in order to appeal from an order that dismisses another claim without prejudice, we conclude that the order is not 'final' for purposes of [28 U.S.C.] § 1291."). We issued an order allowing the parties thirty days to secure a Rule 54(b) certification from the district court or to obtain an order adjudicating the remaining claims. We have received the district court's order dismissing the unadjudicated claims with prejudice, and we proceed to address this appeal on the merits.

Summary judgement is appropriate if the pleadings and other documents before the court "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

When reviewing the district court's ruling on a summary judgment motion, we review the motion de novo. We must decide whether any genuine issue of material fact is in dispute and, if not, whether the law was correctly applied. We must look at the record in the light most favorable to the party opposing summary judgment. Summary judgment is only appropriate if the moving party is entitled to judgment as a matter of law.

Murray v. City of Sapulpa, 45 F.3d 1417, 1419 (10th Cir.1995) (citations omitted).

In considering Plaintiff's claims, we bear in mind that the Fourteenth Amendment protects citizens from the deprivation of "life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1.

[P]rocedural due process ensures that a state will not deprive a person of life, liberty or property unless fair procedures are used in making that decision; substantive due process, on the other hand, guarantees that the state will not deprive a person of those rights for an arbitrary reason regardless of how fair the procedures are that are used in making the decision.

Archuleta v. Colorado Dep't of Insts., Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir.1991).

To determine whether a plaintiff was denied procedural due process, we engage in a two-step inquiry: (1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process? See Watson v. University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir.1996). To properly allege a violation of his procedural due process rights, Plaintiff must first demonstrate that he had a protected property or liberty interest in his status as a lieutenant.

The standard for the existence of a property right in employment is whether the plaintiff has a legitimate expectation of continued employment. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Carnes v. Parker, 922 F.2d 1506, 1512 n. 2 (10th Cir.1991). "The existence of a property interest is defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and [ ] support claims of entitlement to those benefits." Driggins v. City of Oklahoma City, 954 F.2d 1511, 1513 (10th Cir.) (internal quotations omitted), cert. denied, 506 U.S. 843, 113 S.Ct. 129, 121 L.Ed.2d 84 (1992); see Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (holding that the existence of a legitimate property right in employment is determined by reference to state law). This court has held that if state statutes or regulations place substantive restrictions on a government actor's ability to make personnel decisions, then the employee has a protected property interest. See Campbell v. Mercer, 926 F.2d 990, 993 (10th Cir.1991) ("For example, if a statute, regulation, or policy ... restricts the reasons for discharge to 'just cause shown,' then the employee has a right to continued employment until such grounds or causes are shown." (internal quotations omitted)).

The same analysis applied to determine the existence of a property right in employment is utilized to determine if there is a property right in a particular employment status. Procedural detail in a statute or regulation, standing alone, is not sufficient to establish a protected property interest in an employment benefit. See id. However, if the statute or regulation places substantive restrictions on the discretion to demote an employee, such as providing that discipline may only be imposed for cause, then a property interest is created. See Williams v. Kentucky, 24 F.3d...