Morrell v. Stone

• Court: U.S. District Court — Western District of Virginia
• Writing for the Court: Walter Bressler, Edward G. Stout, George M. Warren, Jr., Bristol, Va., for defendants
• Citation: Morrell v. Stone, 638 F.Supp. 163 (W.D. Va. 1986)
• Decision Date: 18 June 1986
• Docket Number: Civ. A. No. 84-0127-A.
• Parties: Donnie MORRELL, Plaintiff, v. Thomas STONE, et al, Defendants.

638 F. Supp. 163

Donnie MORRELL, Plaintiff, v. Thomas STONE, et al, Defendants.

Civ. A. No. 84-0127-A.

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

June 18, 1986.

Cynthia D. Kinser, Pennington Gap, Va., for plaintiff.

Walter Bressler, Edward G. Stout, George M. Warren, Jr., Bristol, Va., for defendants.

MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

Plaintiff, Donnie Morrell, instituted this section 1983 action against the defendants, Thomas Stone, Hugh Cooper and the City of Bristol, Virginia, over his alleged involuntary resignation from the City of Bristol Police Department (Police Department).¹ He claims that the defendants violated his property and liberty interests in his job and reputation, respectively, under the First and Fourteenth Amendments. The action is now before the court on cross-motions for summary judgment pursuant to Fed.R. Civ.P. 56. Jurisdiction is based on 42 U.S.C. § 1983.

I.

The relevant facts and events leading up to the institution of this action are as follows. Prior to his resignation, plaintiff Morrell was a police officer with the Police Department. Defendant Stone was the Chief of Police of the Police Department and defendant Cooper was the Bristol City Manager. On April 9, 1982, one Major Cecil Mumpower received a memorandum from one Lieutenant Charles Cross, both of whom were with the Police Department, in which Cross stated that he had loaned Morrell a gun to use on the firing range and had asked Morrell for its return; that Morrell denied receiving the gun though Morrell had stated to another police officer that it was in his possession; and that he would like for Major Mumpower to take the matter up with Morrell, but if the gun was not returned to him by April 16 he would bring a civil suit against Morrell. When the memorandum was first brought to Chief Stone's attention, Stone took the position that the dispute was merely a civil matter and should be handled between Morrell and Cross without resort to a departmental investigation.

Subsequently, Stone was informed that Cross had, in fact, filed a civil suit against Morrell. According to Stone, he decided at that time, upon reconsideration, that the controversy might reflect adversely upon both Morrell and the Police Department, so he thus proceeded to direct an internal investigation into the matter. In a memorandum dated May 11, 1982, Stone informed Morrell that:

In accordance with the Law Enforcement Officers' Procedural Guarantees, Chapter 10.1, The Code of Virginia, I am advising you that this Department is conducting an internal investigation. The charges stem from the allegation that you failed to return the property of another police officer. To Wit: A Model 14 K38 S.W. Pistol, the property of Lt. Charles Cross, which was alleged sic received by you in 1978 or 1979 and is alleged it has not been returned to Lt. Charles Cross.

Morrell was further advised in the memorandum that action that could be taken against him as a result of the investigation included dismissal.

The trial on Cross' civil warrant in detinue against Morrell was held on June 3, 1982, in the Bristol, Virginia General District Court, with judgment entered for Cross in the amount of three-hundred fifty dollars. At that time, the departmental investigation was still ongoing and Morrell had not been informed by anyone in the Police Department to the contrary, though he has stated that a city councilman told him prior to the trial that he was going to have it stopped. After attending the trial, Stone sought and received defendant Cooper's approval as City Manager to ask Morrell for his resignation, and if Morrell refused, to dismiss him from his position. Cooper has explained that Stone sought such approval because, based on what he had heard in the court testimony, Morrell's credibility had been "greatly impaired." Stone also directed two officers to go to Morrell's residence that same evening to obtain Morrell's gun, badge and police I.D., and to inform him that he was being suspended.

Morrell met with Stone the following day, June 4, 1982. In that meeting, which was attended by at least four other officers, Stone presented Morrell with the choice of either resigning or being dismissed. Morrell ultimately made the decision to submit his resignation, but only after having left the meeting to discuss the matter with his wife and his attorney. Immediately after Morrell resigned, Stone made a public statement announcing the resignation.

Morrell now contends that in conducting the subject investigation and in allegedly forcing him to resign the defendants denied him his rights under Virginia's "Law-Enforcement Officers' Procedural Guarantees," VA.CODE §§ 2.1-116.1-2.1-116.9 (1979), which, in turn, constituted a violation of his constitutionally protected property rights in his job under the First and Fourteenth Amendments. He also contends that the public statements made by Stone violated his constitutionally protected liberty interests in his reputation under the First and Fourteenth Amendments.

II.

To establish a procedural due process claim a plaintiff must show that he has been deprived of a protected liberty or property interest encompassed in the due process clause of the Fourteenth Amendment. Board of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). As to constitutionally protected property interests in public employment, such interests are created and their dimensions defined, not by the federal constitution, but rather by independent sources such as state law, local ordinances and employment contracts. Id. There is some question in the present case whether plaintiff had such a property interest in his position with the Police Department.² For purposes of this decision, the court will nevertheless assume, without deciding, that plaintiff did have a protected property interest in that job.

Turning, then, first to the propriety of the departmental investigation into the allegations made against plaintiff, the court finds that the procedure under which plaintiff was investigated meets the requirements of due process. In addressing the differences between investigative and adjudicative functions of governmental agencies, the Fourth Circuit, in Georator Corp. v. Equal Employment Opportunity Comm'n, 592 F.2d 765, 768-769 (4th Cir. 1979), explained that: "when the preliminary determination of an investigation is without legal effect in and of itself, due process will be satisfied if there is an opportunity to be heard before any final order of the agency becomes effective. Ewing v. Mytinger & Casselberry, 339 U.S. 594, 598, 70 S.Ct. 870, 872, 94 L.Ed.2d 1088 (1950)." The court there also cited to the Supreme Court's decision, Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960), in which the Supreme Court stated that "... when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used." Under the provisions of VA.CODE § 2.1-116.5 of the "Law-Enforcement Officers' Procedural Guarantees," an officer has the right to request a grievance hearing whenever a departmental investigation culminates into a dismissal, demotion, suspension or transfer for punitive reasons. The Virginia Code also provides, in addition to the grievance hearing, that before any such action may be imposed the officer must be notified in writing of all charges, the basis for the charges and the action which may be taken. VA.CODE § 2.1-116.4 (1979). With plaintiff having been given such notice at the outset of the subject investigation, which could not in and of itself result in adverse action, and with a grievance procedure provided for in the event the investigation would lead to collateral action such as dismissal, defendants cannot be found to have violated due process in conducting the investigation.

The second issue here presented involves plaintiff's claim that he was denied due process as a result of his alleged forced resignation. More specifically, plaintiff contends that he was forced to resign without being given the right to a grievance hearing as provided under VA.CODE § 2.1-116.5. The issue is whether plaintiff's resignation was voluntarily submitted, for if it was submitted voluntarily he waived his right to procedural protections to which he might otherwise be entitled, i.e., a grievance hearing. See Jurgensen v. Fairfax County, Va., 745 F.2d 868, 889-890 (4th Cir.1984).

Courts that have decided whether a particular demotion or resignation was taken voluntarily have generally based their decision on the principle that the element of voluntariness is vitiated only when the demotion or resignation was agreed to under duress brought on by government action. See e.g., Jurgensen, 745 F.2d 868; Christie v. United States, 518 F.2d 584, 207 Ct.Cl. 333 (1975); Onnen v. United States, 524 F.Supp. 1079 (D.Neb.1981); Stanley v. Commissioners, United States Civil Service Comm'n., 505 F.Supp. 63 (W.D.Mo. 1980). In Jurgensen, the Fourth Circuit addressed the issue in the context of a public employee's claim of duress as a defense to his signed agreement to a demotion. Similar to the plaintiff in the present case, the employee in Jurgensen had the choice of taking a demotion or facing possible disciplinary action ranging from demotion to dismissal as a result of his having violated a departmental regulation of the Fairfax County, Virginia Police Department. Based on an analysis under the Restatement (Second) of Contracts, the court held that the "threat of dismissal staring plaintiff in the face" did not constitute duress. Critical to the court's holding was the fact that plaintiff had a right to seek relief under administrative proceedings provided under the Civil Service Act had his superior recommended that he be dismissed. Jurgensen, 745...