Himmelbrand v. Harrison, Civ. A. No. 79-0053-L.

• Decision Date: 05 February 1980
• Docket Number: Civ. A. No. 79-0053-L.
• Parties: Leslie A. HIMMELBRAND v. M. P. HARRISON, III et al.
• Court: U.S. District Court — Western District of Virginia

484 F. Supp. 803

Leslie A. HIMMELBRAND v. M. P. HARRISON, III et al.

Civ. A. No. 79-0053-L.

United States District Court, W. D. Virginia, Lynchburg Division.

February 5, 1980.

Arthur B. Davies, III, Davies & Peters, Lynchburg, Va., for plaintiff.

Roy B. Thorpe, Jr., Bedford, Va., for defendants.

OPINION

TURK, Chief Judge.

This case arises from the termination of a policeman's employment with the City of Bedford, Virginia. Plaintiff Leslie A. Himmelbrand brings the suit under 42 U.S.C. § 1983 alleging essentially that his rights to procedural due process were violated because his former employers have refused to grant his request for a grievance hearing. Named as defendants are, in addition to the City of Bedford, Chief M. T. Harrison, III, of the Bedford Police Department, D. Keith Cook, City Manager of Bedford, and each member of the Bedford City Council. All the individual defendants are sued in both their official and their personal capacities.

The case is before the court on cross motions for summary judgment. As will become clear, there are issues of fact in this case which will require resolution at trial. To the extent that there is agreement, however, the following appear to be the relevant facts.

Leslie A. Himmelbrand had been employed as a police officer by the City of Bedford since June 7, 1966. His employment ceased on December 31, 1978. The events which at this stage of the case appear most directly to have contributed to his termination occurred at the firing range of the Lynchburg Police Department. It evidently is the custom for Bedford's city policemen to use the Lynchburg Police Department firing range for instruction and practice in the use of firearms. On October 25, 1978, Mr. Himmelbrand reported to the Lynchburg range. Precisely what happened there is not clear. Defendants maintain in effect that Himmelbrand was guilty of misconduct at the range; Mr. Himmelbrand, of course, denies the charge. In any event, Chief John K. Swan of the Lynchburg Police Department decided that "the services of our range will no longer be available" to Mr. Himmelbrand. In a letter dated October 27, 1978, Chief Swan notified Mr. Himmelbrand's superior, Chief Harrison of the Bedford Police Department, of his decision to exclude Mr. Himmelbrand from the range.¹

Chief Harrison summoned Mr. Himmelbrand to his office on October 30, 1978, to discuss Mr. Himmelbrand's exclusion from the firing range. During the course of the October 30 conversation with Chief Harrison, Mr. Himmelbrand, according to his own affidavit, denied most of the charges of misconduct contained in Chief Swan's October 27 letter.² At the close of the October 30 conversation, Chief Harrison stated that he would "look into the matter and get back in touch" with Mr. Himmelbrand.

On the next day, October 31, 1978, Mr. Himmelbrand was again summoned to Chief Harrison's office. What happened during that meeting and thereafter is in substantial dispute. In the words of Mr. Himmelbrand's affidavit:

I was informed by Police Chief Harrison that due to the allegations contained in Chief Swan's letter I could no longer qualify in the use of a firearm and therefore would be of no use to the Police Department of the City of Bedford. Police Chief Harrison then stated that he wanted my resignation and that if I did so, he would see that I got a favorable job evaluation. He stated that if I did not resign, he would give me an unfavorable job evaluation. He stated further that if I did not resign, he had a "letter" ready. It was clear to me at that time that if I did not resign, or in Chief Harrison's words, if I chose "to fight him", I would be suspended without pay pending final resolution of the complaints lodged against me.

Chief Harrison's affidavit relates a markedly different impression of the October 31 meeting. He states that he "did not demand plaintiff's resignation," that he "did not threaten plaintiff with discharge," and that he "did not coerce or in any way force plaintiff to resign." Chief Harrison concludes that "plaintiff chose to resign voluntarily."³

Whatever the true purport of the October 31, conversation, Mr. Himmelbrand did sign a letter of resignation dated November 1, 1978. This letter provided:

As per our conversation of 31st October, 1978, I am herewith submitting my resignation to be effective the 30th of November, 1978. This is brought about by complaints from Lynchburg Police Department regarding my reported conduct while on the range on the 25th of October 1978. Coupled with other complaints that have been lodged against me I feel that I can no longer do an effective job as a police officer for the City of Bedford.

Subsequently, on November 16, 1978, in a letter addressed to Chief Harrison and to City Manager D. Keith Cook, Mr. Himmelbrand attempted to withdraw the resignation. Mr. Himmelbrand also at that time requested a grievance hearing.⁴ He stated his belief — in light of his discovery that much of the information which led to the termination decision was inaccurate — that he could completely exonerate himself if he were granted a hearing.⁵ Chief Harrison, however, refused to permit Mr. Himmelbrand to withdraw the resignation and declined to honor Mr. Himmelbrand's request for a grievance hearing. Chief Harrison stated his position in a letter dated November 27, 1978:

Having accepted your letter of resignation in good faith, and having relied upon it, I see no reason now to reverse the decision made. Your resignation was your free act, done knowling sic what your alternatives might be. Having so made your choice, I intend to continue to rely upon it. Your resignation, therefore, will stand.

On December 18 the City Attorney announced "the position of the City of Bedford": the resignation "will proceed as scheduled."

On January 8, 1979, plaintiff, by his counsel, formally requested the grievance hearing procedure provided in the "Law-Enforcement Officers' Procedural Guarantees." Va.Code § 2.1-116.1 (1979) et seq. This request was addressed both to Chief Harrison and to City Manager Cook. The Bedford City Attorney responded in behalf of these defendants on January 12, 1979. Their position with respect to the hearing was — and remains — that Mr. Himmelbrand had voluntarily resigned, and that a voluntary resignation was beyond the coverage of the statutory grievance procedure. They contend, in effect, that Mr. Himmelbrand waived his right to a hearing by submitting the resignation letter.

Mr. Himmelbrand then brought this suit alleging violations of his right to procedural due process under the fourteenth amendment. He seeks $75,000.00 in damages for back pay and other benefits lost as a result of the alleged violations of his rights, as well as reinstatement and an award of attorney's fees. All of the defendants and the plaintiff have filed motions for summary judgment.⁶

Essentially, the motions and briefs raise three critical issues. First, it is necessary to determine the extent to which Mr. Himmelbrand may claim fourteenth amendment protection. Second, the court must determine which of the defendants named here are properly suable under § 1983. Finally, the court will address the questions of the voluntariness of Mr. Himmelbrand's resignation and the possible waiver of his rights in executing the resignation letter.

I. PROCEDURAL DUE PROCESS

In their motions for summary judgment defendants urge that Mr. Himmelbrand is not entitled to a hearing under the fourteenth amendment because he has not been deprived of any interest protected by the constitution. The proper framework for analysis in cases such as this is well known. The Due Process Clause of the fourteenth amendment requires procedural safeguards only where the state deprives a person of a liberty interest or a property interest. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Thus, in order to show that he is entitled to procedural due process under the federal constitution, a terminated public employee must show that in losing his job, he was deprived of a property or liberty interest. The controversy in the instant case has focused on whether Mr. Himmelbrand had a property interest in his employment.

The source of the property interests protected by the fourteenth amendment was outlined in Roth, 408 U.S. at 577, 92 S.Ct. at 2709: "Property interests," the Court explained, "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." When a public employee can demonstrate that he has a "legitimate claim of entitlement to continued employment," Sindermann, 408 U.S. at 602, 92 S.Ct. at 2700, he establishes his possession of a property interest in his job, the deprivation of which must be accompanied by a hearing at his request. Id. at 603, 92 S.Ct. at 2700. The sufficiency of such a claim of entitlement may be determined by reference to state law — "rules and understandings, promulgated and fostered by state officials . . .." Id. at 602, 92 S.Ct. at 2700.

Mr. Himmelbrand contends that the procedural safeguards of the "Law-Enforcement Officers' Procedural Guarantees," Va.Code § 2.1-116.1 (1979) et seq., themselves give rise to a "legitimate claim of entitlement." He maintains, in effect, that the "Law Enforcement Officers' Procedural Guarantees" constitute an incident of his employment and that, as such, they provide him with a property interest in his job.⁷

In Prince v. Bridges, 537 F.2d 1269, 1272 (4th Cir. 1976), the Fourth Circuit stated:

A constitutional guarantee of procedural due process arises when a public employee is discharged in violation of the procedural rules designed to protect him.

Similarly, this court has previously determined that where...