Nelson v. City of McGehee, 88-2024

• Decision Date: 26 May 1989
• Docket Number: No. 88-2024,88-2024
• Citation: 876 F.2d 56
• Parties: 49 Fair Empl.Prac.Cas. 1594 Thomas E. NELSON, Appellant, v. The CITY OF McGEHEE; Rosalie S. Gould; Jim D. Harris, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 56

876 F.2d 56

49 Fair Empl.Prac.Cas. 1594

Thomas E. NELSON, Appellant, v. The CITY OF McGEHEE; Rosalie S. Gould; Jim D. Harris, Appellees.

No. 88-2024.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1989.

Decided May 26, 1989.

Charles S. Gibson, Dermott, Ark., for appellant.

Gibbs Ferguson, McGehee, Ar & Paul Schiffer, Houston, Tex., for appellees.

Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Thomas E. Nelson, former Assistant Chief of Police for the City of McGehee, Arkansas, appeals from a final order entered in the United States District Court ¹ for the Eastern District of Arkansas, granting summary judgment and dismissing his 42 U.S.C. Sec. 1983 complaint. Appellees are the City of McGehee, Arkansas, McGehee Mayor Rosalie S. Gould, and McGehee Chief of Police, Jim D. Harris. For reversal, Nelson argues that the district court erred in granting summary judgment because there were genuine, triable issues of material fact. Fed.R.Civ.P. 56(c). We disagree and affirm for the reasons set forth herein.

A motion for summary judgment should be granted if, viewing the evidence in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (Anderson). "The party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. at 2510 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968) (Cities Service) ). Only disputes over facts that may affect the outcome of the lawsuit under the governing substantive law will properly preclude the entry of summary judgment. See generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure Sec. 2725, at 93-95 (1983).

Nelson, an at will employee, alleged in his complaint that he was deprived of a liberty interest because appellees discharged him for a stigmatizing reason without due process, i.e., a pre-termination "name clearing" hearing. See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) (Roth ); Hogue v. Clinton, 791 F.2d 1318, 1322-23 (8th Cir.), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986). The specific reason for Nelson's discharge was a sexual harassment charge brought against Nelson by Barbara Clark, a police officer employed by the City of McGehee. Nelson contends that appellees made the sexual harassment charge public with the intent to injure him.

The essential requirements of due process in this case are notice of the charge and an opportunity to be heard. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (Loudermill) (citations omitted); Roth, 408 U.S. at 573, 92 S.Ct. at 2707. Mere publication of a false stigmatizing reason for discharge, intentional or otherwise, is not actionable under Sec. 1983 unless the injured party was denied the opportunity to refute the charge. Roth, 408 U.S. at 573, 92 S.Ct. at 2707. It is the denial of due process, not the alleged defamation per se, which triggers a federal cause of action. See Paul v. Davis, 424 U.S. 693, 709-12, 96 S.Ct. 1155, 1164-66, 47 L.Ed.2d 405 (1976) (interest in reputation alone not a liberty or property interest protected by fourteenth amendment). The purpose of the pre-termination hearing is to provide an "initial check against mistaken decisions" and to determine "whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495 (citations omitted). By no means does the hearing correctly and finally determine the validity of the reason given for termination. See id.

In their motion for summary judgment, appellees argue that Nelson received all the process he was due in his hearing before Chief Harris and in his subsequent hearing before the city council which was chaired by Mayor Gould. Nelson, in his response to appellees' motion for summary judgment, did not deny that he received both a pre-termination and a post-termination hearing. Rather, Nelson alleged that the hearings were constitutionally defective because a conspiracy existed between Harris and Gould to force Clark to falsify sexual harassment charges against him so that appellees could use the charges as a pretext for his termination. Consequently, Nelson argues, the hearings were unmeaningful and constituted a denial of due process.

Attached to appellees' motion for summary judgment are the depositions of Harris and Gould. In his deposition, Harris testified that he and Gould discussed at length what action should be taken in response to the sexual harassment charges against Nelson, and that the mayor advised him to give Nelson the option of resignation or termination. Harris testified, however, that he told Gould that if, after talking to Nelson, he was not satisfied that the charges were true, he would not ask Nelson to resign nor would he terminate Nelson. Harris also testified that he contacted two independent witnesses to the alleged harassment incident prior to meeting with Nelson. Both of the witnesses said that they were present when the alleged incident took place. Although one of the witnesses said he saw Nelson touch Clark, neither heard what was said between the two. Both told Harris that Clark appeared to be visibly upset and shaken.

Gould testified that after she received Clark's allegations of sexual harassment, she notified Harris. First, Gould stated that she said to Harris, "Chief, it's my understanding because we've a book and I read the book. You have got to talk with Mr. Nelson. You got to lay this before him. You've got to give him a chance to say yes or no, and then the two of you go over all this and use your best judgment. But if, in your judgment, these allegations are true, give Mr. Nelson the opportunity to resign, and if he does not, he will have to be terminated."

Nelson, in his own deposition, stated that he requested and was granted a post-termination hearing before the city council. He also admits that following the post-termination hearing, held in executive session, the mayor announced to the public that the termination had been upheld,...