Rosenstein v. City of Dallas, Tex., 87-1888

• Decision Date: 14 May 1990
• Docket Number: No. 87-1888,87-1888
• Parties: Howard M. ROSENSTEIN, Plaintiff-Appellee, v. The CITY OF DALLAS, TEXAS, and Donald Milliken, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 61

901 F.2d 61

Howard M. ROSENSTEIN, Plaintiff-Appellee, v. The CITY OF DALLAS, TEXAS, and Donald Milliken, Defendants-Appellants.

No. 87-1888.

United States Court of Appeals, Fifth Circuit.

May 14, 1990.

Sam A. Lindsay, Chandra V. Fripp, Asst. City Attys., Dallas, Tex., for defendant-appellant.

Bruce A. Pauley, Lyon & Lyon, Rowlett, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas; Jerry Buchmeyer, Judge.

Before CLARK Chief Judge, GOLDBERG, GEE, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges.

PER CURIAM:

The en banc court reinstates the opinion of the panel majority (876 F.2d 392) with the following exceptions: footnote 2 and the writing and footnotes under "Damages." The only objection made by any appellant to the damage award, or to the form of submission of the damages to the jury, was to the punitive damages awarded against Donald Milliken. Other errors, if any, in the submission and award of damages, have been waived. See Galtieri v. Wainwright, 582 F.2d 348, 352 n. 8 (5th Cir.1978); Farrar v. Cain, 756 F.2d 1148, 1150 (5th Cir.1985).

The judgment against Donald Milliken is reversed and the claim against him is dismissed. The district court's judgment against the City of Dallas is in all respects affirmed.

REVERSED IN PART, AFFIRMED IN PART.

JERRY E. SMITH, Circuit Judge, with whom CHARLES CLARK, Chief Judge, GEE, GARWOOD, and EDITH H. JONES, Circuit Judges, join, dissenting:

The majority fundamentally errs in asserting that plaintiff Howard Rosenstein requested a name-clearing hearing following notice of his termination. The record is wholly devoid of anything that would have put the City of Dallas on notice that Rosenstein was seeking anything more than an appeal for the purpose of overturning his termination. As the principle of fair notice runs throughout our jurisprudence, it is surprising that the majority would treat the concept of notice so casually in the instant context.

It is axiomatic that a terminated public employee must affirmatively request a name-clearing hearing in order to be entitled to one. Most recently, for example, in Rathjen v. City of Houston, 878 F.2d 836, 840 (5th Cir.1989), this court observed that "Perry v. Sinderman [n ], 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570, 580 (1972) holds only that an employee is entitled to a hearing if he requests one...." Similarly, in Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir.1984), we noted that "a discharged public employee is entitled to a 'name-clearing' hearing ... when he requests such a hearing." The panel opinion that the majority substantially adopts indeed recognizes that a name-clearing hearing must be requested. Rosenstein v. City of Dallas, 876 F.2d 392, 396 (5th Cir.1989) (citing Campos, 743 F.2d at 1126).

The majority gives scant attention to this issue, however. It concludes, incorrectly, that the request for an appeal of the decision to dismiss is always tantamount to a request for a name-clearing hearing. ¹ No authority is cited for this bold proposition, which is undermined by the majority's own legal analysis and supported only by its ipse dixit.

Early in its opinion, the majority correctly and carefully explains that an appeal of a dismissal, on the one hand, and a name-clearing hearing, on the other hand, are clean different things: "[T]he process due such an individual is merely a hearing providing a public forum or opportunity to clear one's name, not actual review of the decision to discharge the employee." 876 F.2d at 395 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 n. 12, 92 S.Ct. 2701, 2707 n. 12, 33 L.Ed.2d 548 (1972)). Rosenstein requested only that the decision to dismiss him be reviewed; he never hinted that he desired a name-clearing hearing, as well.

An appeal is an adversarial proceeding resulting in a decision to uphold or reverse disciplinary action. In a name-clearing hearing, on the other hand, the employer need not produce any evidence, as nothing is to be proved or decided; the employee is merely given a public opportunity to present his or her side of the story. The city's written provisions that Rosenstein claims he was trying to invoke are geared toward reconsideration of the disciplinary decision; nothing about them suggests that they are designed to afford a name-clearing opportunity; nor is there any evidence that the city would have refused a name-clearing proceeding if Rosenstein had intimated that he wanted one.

As the majority notes, id. at 396, Rosenstein's letter stated, in pertinent part, "I was fired ... for something that I did not do.... I hereby request an appeal from this decision." Rosenstein never even requested a hearing, much less intimated that he wanted anything resembling a name-clearing hearing.

The issue, of course, is whether the city was on fair notice that Rosenstein made the request that the law requires. His case might be stronger if he had made a more general plea for redress. Instead, he made a specific request for an appeal, lending the recipient reasonably to conclude that such relief was being requested to the exclusion of other relief. ²

At oral argument, Rosenstein's counsel relied in part upon the fact that Rosenstein's letter disputed the charges against him. The suggestion is that such statement implied a desire to "clear the air" regarding the stigma of the allegations. To the contrary, however, in the context of public employee law in Texas, Rosenstein's denial of the accusations underscores the fact that only a formal appeal of his dismissal is what was being sought.

In Texas, the general statute providing for appeals by police officers and firefighters from disciplinary actions, in cities with populations of 10,000 or more that have adopted the statutory scheme by referendum, ³ is Tex.Loc.Gov't Code Ann. Sec. 143.010(b) (Vernon 1988). ⁴ That provision requires that "[t]he appeal must also contain a statement denying the truth of the charge as made...." Significantly, the requirement is jurisdictional. City of Temple Firemen's & Policemen's Civil Serv. Comm'n v. Bender, 787 S.W.2d 951(1990); City of Plano Firefighters' & Police Officers' Civil Serv. Comm'n v. Maxam, 685 S.W.2d 125, 127-28 (Tex.App.--Dallas 1985, writ ref'd n.r.e.).

Thus, the denial of the truth of the charges can easily be understood as boilerplate, customarily included in letters of appeal because the general statute requires it. To the same effect, although Rosenstein acknowledges that as a probationary employee he was not entitled to utilize the appeal procedures conferred by the Dallas charter and code, he asserts that he was attempting to invoke those procedures in his "appeal" letter. But those procedures, like the scheme set forth in the state statute, deal only with an officer's attempt to regain his job and say nothing about name-clearing devices. Given the context of police appeals in Dallas and Texas, it is wholly unfair for this court to conclude that Dallas city officials were reasonably on notice that Rosenstein was requesting a name-clearing hearing.

Correctly, the majority observes that "[a] discharged employee need not use the term 'name-clearing hearing.' " 876 F.2d at 396. Remarkably, the majority then cites Owen v. City of Independence, 445 U.S. 622, 626-29, 100 S.Ct. 1398, 1402-04, 63 L.Ed.2d 673 (1980), as a case in which the fired employee "demanded only [an] appeal and was refused on the grounds that the city charter provided for no appellate procedure." 876 F.2d at 396. In fact, however, the letter in Owen patently requested name-clearing relief and stands in stark contrast to Rosenstein's narrow demand to have his dismissal reversed. The relevant portion of the letter in Owen is reproduced in the margin. ⁵

Finally, but importantly, the record in this case reveals that Rosenstein testified that he was aware, when he wrote his appeal letter, that he was entitled to a name-clearing...