Poolaw v. City of Anadarko, Okl., 79-2304

• Decision Date: 25 September 1981
• Docket Number: No. 79-2304,79-2304
• Citation: 660 F.2d 459
• Parties: 27 Fair Empl.Prac.Cas. 1022, 27 Empl. Prac. Dec. P 32,123 Bruce POOLAW, Plaintiff-Appellant, v. The CITY OF ANADARKO, OKLAHOMA; the Mayor of Anadarko, Clark McCaskel; the City Manager, Royce Hunter; the Former Acting Chief of Police, J. C. Givens; the Former Acting City Managers, Bob Wilkerson and Ron Madison, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 459

660 F.2d 459

27 Fair Empl.Prac.Cas. 1022,

27 Empl. Prac. Dec. P 32,123

Bruce POOLAW, Plaintiff-Appellant, v. The CITY OF ANADARKO, OKLAHOMA; the Mayor of Anadarko, Clark

McCaskel; the City Manager, Royce Hunter; the Former Acting

Chief of Police, J. C. Givens; the Former Acting City

Managers, Bob Wilkerson and Ron Madison, Defendants- Appellees.

No. 79-2304.

United States Court of Appeals, Tenth Circuit.

Argued March 19, 1981.

Decided Sept. 25, 1981.

John Constantikes, Oklahoma City, Okl. (Grover Miskovsky, Oklahoma City, Okl., on the brief), of Miskovsky, Sullivan, Miskovsky, Cooke & Gregg, Oklahoma City, Okl., for plaintiff-appellant.

Terry W. Tippens, Oklahoma City, Okl. (Margaret McMorrow-Love, Oklahoma City, Okl., with him on the brief), of Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, Okl., for defendants-appellees.

Before DOYLE, LOGAN, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Bruce Poolaw, an American Indian, sued the City of Anadarko, its City Manager, and various other present or former city officials pursuant to 42 U.S.C. §§ 1981, 1983, and 2000e et seq. (Title VII). The trial court dismissed the causes of action alleged under sections 1981 and 1983 for failure to state a claim upon which relief could be granted, and dismissed the Title VII cause of action for failure to file a timely charge. Poolaw appeals and we reverse.

I. BACKGROUND

Upon review of the trial court's order of dismissal, we must assume that the facts alleged in the complaint are true. Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977); Dewell v. Lawson, 489 F.2d 877, 879 (10th Cir. 1974). We may sustain dismissal only if it appears beyond doubt that Poolaw can prove no set of facts entitling him to relief on his claims. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-2, 2 L.Ed.2d 80 (1957); Bryan, 578 F.2d at 1321.

In his amended complaint, Poolaw alleges under 42 U.S.C. § 1981 and Title VII that because of his race defendants intentionally deprived him of the same employment rights and benefits accorded to Caucasians. The alleged improper practices include discriminatory job classifications, promotional practices, and rates of pay. Poolaw also alleges that he was fired without cause and that he was not reinstated by the City after a review board found his discharge to be improper. Poolaw claims this failure to reinstate following the review board's finding was racially discriminatory because a Caucasian police officer was reinstated under similar circumstances.

In his section 1983 cause of action, Poolaw alleges that he was denied both equal protection and due process of law by the official conduct of defendants. In support of his equal protection allegation, Poolaw charges the City with essentially the same discriminatory conduct noted above. His due process claim allegedly arises from his termination and from the City's failure to reinstate him following the finding of the review board.

At the hearing on defendants' motion to dismiss, the trial court orally concluded that Poolaw had no property interest in his employment with the City and that he had therefore failed to state a claim for relief under either section 1981 or 1983. As to the Title VII claim, the trial court held that the 180-day period within which Poolaw was required to file his Title VII claim with the EEOC began to run on the date of his discharge. The court dismissed the Title VII claim because Poolaw failed to file within this period.

II. THE SECTION 1981 CLAIM

The Supreme Court has noted that although section 1981 ¹ "on its face relates primarily to racial discrimination in the making and enforcement of contracts," Johnson v. Railway Express Agency, 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975), the statute provides a remedy against employment discrimination on the basis of race. Id. at 459-60, 95 S.Ct. at 1719-20. Grounded as it is on the Thirteenth The dismissal order itself gives no reason why the trial court concluded that Poolaw failed to state a claim under section 1981. However, at the hearing on the issue, the judge stated that he was sustaining defendants' motion to dismiss the section 1981 cause of action because he concluded that Poolaw did not have a property interest in his employment.

Amendment, section 1981 protects employees from racial discrimination in both the public and private sectors. See Garner v. Giarrusso, 571 F.2d 1330, 1338 (5th Cir. 1978).

Neither the trial court nor the defendants have cited any case holding that a plaintiff who alleges intentional employment discrimination based on race fails to state a claim under section 1981 unless he has a property interest in his job. On the contrary, section 1981 has been held to provide relief for a discriminatory refusal to hire, a situation in which a property interest in any job is clearly absent. See, e. g., Ramirez v. Sloss, 615 F.2d 163 (5th Cir. 1980); Sabol v. Snyder, 524 F.2d 1009 (10th Cir. 1975); Faraca v. Clements, 506 F.2d 956, 958 (5th Cir. 1975). While the existence of a property interest is critical to the issue of whether a plaintiff may invoke constitutional due process guarantees pursuant to 42 U.S.C. § 1983, see part II infra, it is simply irrelevant to a claim of denial of equal employment because of race under section 1981.

Poolaw has alleged numerous acts of purposeful employment discrimination by defendants on account of his race. Such allegations state a claim for relief pursuant to section 1981. See, e. g., Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th Cir. 1979); Chicano Police Officers Association v. Stover, 552 F.2d 918 (10th Cir. 1977).

III. THE SECTION 1983 CLAIMS

In his claim for relief under section 1983, ² Poolaw alleges that defendants denied him both equal protection and due process under color of state law. As with the section 1981 claim, the sole reason appearing anywhere in the record for the dismissal of the section 1983 claim is the trial court's conclusion that Poolaw had no property interest in his employment.

A. Denial of Equal Protection

Section 1983 provides a remedy for state action that purposefully discriminates on the basis of race in violation of the equal protection clause of the Fourteenth Amendment. See, e. g., Flores v. Pierce, 617 F.2d 1386, 1388 (9th Cir. 1980). The protection afforded by section 1983 includes relief from discriminatory employment practices of public employers. See Whiting v. Jackson State University, 616 F.2d 116, 121-22 (5th Cir. 1980). Thus, the constitutional right to equal protection with regard to public employment does not depend on the existence of a property interest in that employment.

A claim made under section 1983 that the state has impermissibly discriminated on the basis of race and thereby denied a plaintiff equal protection is not to be confused with a claim that the state has deprived a plaintiff of a liberty or property interest without due process of law. See id.; Harris v. Harvey, 605 F.2d 330, 338 (7th Cir. 1979). Here Poolaw has asserted that defendants denied him equal protection on the basis of race. The allegations of discriminatory employment practices which are sufficient to support Poolaw's claim for relief under section 1981 are also sufficient to withstand a motion to dismiss his equal protection claim under section 1983. See Whiting, 616 F.2d at 121-22.

B. Denial of Due Process

We now turn to Poolaw's allegation under section 1983 that defendants deprived him of a property interest without due process of law. As a preliminary matter, we note that the trial judge considered provisions of the Anadarko municipal charter, material outside the pleadings, in assessing defendants' motion to dismiss this claim. Under Fed.R.Civ.P. 12(b), the motion is to be treated as one for summary judgment.

The relevant city charter provisions state that no policeman may be discharged without cause, and that a discharged policeman may appeal his case to a board of review. The charter further provides that the decision of the review board may be appealed to the state district court and thereafter to the state supreme court, and that the decision of the state supreme court shall be final.

In making its determination that the above provisions did not create a property interest in employment, the trial court relied on the consolidated cases of De Bono v. Vizas and Montera v. Vizas, Nos. 77-1299, 77-1300 (10th Cir. Dec. 18, 1978), and on the case of Abeyta v. Town of Taos, 499 F.2d 323 (10th Cir. 1974). However, those cases are factually distinguishable from the instant situation and do not support the decision below.

In De Bono and Montera, the issue was whether the relevant Colorado statute created a protected property interest in certain city jobs. The statute stated that employees appointed by the city manager could be removed by him for cause, and that the decision of the city manager in such a case would be final. We found it significant that the final decision as to what constituted cause rested with the city manager. Because the statute in essence vested unfettered discretion in the city manager with regard to police employment decisions, we held that no property interest was created.

Here, to the contrary, the final decision as to whether a discharge is supported by cause does not rest with the city official who discharges the employee. The Anadarko municipal charter provides an appeal to the review board and then through the state court system. The charter expressly states that the decision of the state supreme court shall be final. Thus the discretion of the Anadarko city manager is subject to review both by the board and the courts, a circumstance not present in the De Bono and Montera cases.

In Abeyta v. Town of Taos, 499 F.2d 323, there was no statutory limitation on discharge from employment, and no...