Schultea v. Wood

• Citation: 27 F.3d 1112
• Decision Date: 09 August 1994
• Docket Number: No. 93-2186,93-2186
• Parties: Joseph M. SCHULTEA, Sr., Plaintiff-Appellee, v. David Robert WOOD, et al., Defendants, David Robert Wood, Homer Ford, W.F. "Slim" Plagens, and Warren K. Driver, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1112

27 F.3d 1112

Joseph M. SCHULTEA, Sr., Plaintiff-Appellee, v. David Robert WOOD, et al., Defendants, David Robert Wood, Homer Ford, W.F. "Slim" Plagens, and Warren K. Driver, Defendants-Appellants.

No. 93-2186.

United States Court of Appeals, Fifth Circuit.

Aug. 9, 1994.

Order Granting Rehearing En Banc Aug. 26, 1994.

George W. Vie, III, John Eckel, Mills, Shirley, Eckel & Bassett, L.L.P., Galveston, TX, for appellants.

Lynne Marie Gomez, Kelley Abbott Hammon, Ross, Banks, May, Cron & Cavin, L.L.P., Houston, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiff Joseph M. Schultea, Sr. brought this 42 U.S.C. Sec. 1983 lawsuit against Defendants David R. Wood, Homer Ford, and W.F. Plagens--three councilmen of the City of Tomball--and Warren K. Driver--the city manager--("the Defendants"), alleging that they unlawfully deprived him of his substantive due process rights when transferring him from his position as the City's chief of police to the position of assistant chief. The Defendants moved to dismiss the complaint on qualified immunity grounds. The Defendants now appeal the district court's decision denying their motion. We affirm in part, reverse in part, and remand.

I

Schultea currently is the assistant chief of police in Tomball. In March 1992, Schultea, then the City's chief of police, began investigating allegations that councilman Wood had engaged in criminal activity. On April 9, 1992, Schultea discussed his investigation with city manager Driver and Mario Del Osso, the city attorney. Schultea, Driver, and Del Osso decided that Schultea should forward all information regarding Wood to the Texas Department of Public Safety ("TDPS"). Schultea alleges that Wood learned of his investigation soon after the April 9 meeting because Driver, on April 10, advised Schultea that Wood demanded that Driver "put Schultea on the City Council's April 20, 1992 agenda for adverse action." Driver, according to Schultea, managed to dissuade Wood from pursuing any "threatened retaliation" against Schultea.

On May 27, Schultea, after advising Driver, forwarded to the TDPS additional information about Wood. Later that same day, Schultea learned that Wood, Ford, and Plagens instructed Driver to place Schultea on the June 1 city council agenda, "at which time [the] council would discuss terminating or demoting Schultea." Schultea subsequently requested that the city council declare the portion of the June 1 council meeting pertaining to him to be an "open and public meeting" at which he could address the council and the citizens of Tomball, but the council denied his request. Schultea further contends that, during the same time period, the Defendants made defamatory statements about him "concerning an alleged violation of the City's purchasing ordinance and competitive bid process." In response, Schultea requested a "name-clearing" hearing, which, according to the complaint, the city council denied. On June 2, Driver formally informed Schultea that he had been demoted from police chief to assistant chief.

Schultea subsequently filed this lawsuit in federal district court, alleging that the Defendants terminated him in retaliation for reporting Wood's allegedly criminal activities to the TDPS, in violation of the First Amendment, and that the reassignment occurred without due process, in violation of both his property and liberty interests. ¹ The Defendants filed a motion to dismiss Schultea's constitutional claims under Fed.R.Civ.P. 12(b)(6). The district court denied the Defendants' motion, holding only that "the complaint ... states a claim against the defendants."

II

We review de novo the district court's decision to deny a motion to dismiss on immunity grounds. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994). "We must accept all well-pleaded facts as true, and we view them in the light most favorable to the plaintiff." Id. "The complaint is not subject to dismissal unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chrissy F. v. Mississippi Dept. of Pub. Welfare, 925 F.2d 844, 846 (5th Cir.1991) (internal quotation omitted).

As public officials, the Defendants "are entitled to qualified immunity from suit under section 1983 unless it is shown by specific allegations that [they] violated clearly established constitutional law." ² Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992). The qualified immunity determination requires a two-step analysis. In reviewing a denial of qualified immunity, we first must determine whether the plaintiff has stated a violation of a clearly established constitutional right. Id. "A necessary concomitant to the determination of whether the constitutional right asserted by the plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1992); see also Hopkins v. Stice, 916 F.2d 1029, 1030-31 (5th Cir.1990) (A public official "enjoys qualified immunity if a reasonable official would be left uncertain of the application of the standard to the facts confronting him."). If the plaintiff crosses this threshold, "we next examine the objective reasonableness of the defendant official[s'] conduct." Salas, 980 F.2d at 305-06.

III

To succeed with a claim based on substantive due process in the public employment context, the plaintiff must demonstrate that he had a clearly-established property interest in his employment. Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir.1993). A property interest in employment may be created by an implied contract. Id. Because Texas is an employment-at-will state, ³ employment contracts are terminable at will by either party absent a specific contract to the contrary. Id. Thus, to prevail, Schultea must demonstrate that such a contract existed. Id.

Schultea contends that the City Charter established that he could be removed from his position as chief of police only "for cause." ⁴ The Charter provides in pertinent part that:

The Chief of Police is the senior officer of the Police Department. He is appointed by the City Manager, with the approval of the Council, for an indefinite term.... He is responsible to the City Manager for the administration of the Police Department and the performance of Council-established duties and directives. He may be removed from office by the City Manager, with the approval of the Council.

In Moulton, 991 F.2d at 230-31, and Henderson v. Sotelo, 761 F.2d 1093, 1096-97 (5th Cir.1985), we reviewed similar charter provisions and held that absent "termination for cause" language, this type of charter provision creates no property interest. Consequently, Schultea had no entitlement to continued employment absent cause for dismissal under the Charter and, thus, had no property interest in his status as police chief.

Schultea nevertheless argues that representations made by the city manager who hired him--Don Taylor--constituted an oral agreement that the City would not remove him from his position as police chief except "for cause." Schultea asserts that Taylor "was the appropriate policy maker who had the authority to modify" the Charter provision relating to the chief of police position. Schultea's argument appears to be that because Taylor was expressly authorized to modify the Charter provision, the modification is valid and binds the City. See Moore v. Office of Atty. General, 820 S.W.2d 874, 878 (Tex.App.--Austin 1991) (noting that "the rule that an agent can bind his principal by acts within his apparent authority has been held not to apply to public officials"). However, Schultea has failed to allege that the City Council ever acted to confer any express authority to act as its agent regarding any changes to the at-will provision of the Charter. ⁵ See Hopkins, 916 F.2d at 1031; Thermo Prods. Co. v. Chilton Indep. Sch. Dist., 647 S.W.2d 726, 732-33 (Tex.App.--Waco 1983, writ ref'd n.r.e.). Moreover, Schultea has not alleged that the Council was ever informed of Taylor's alleged oral agreement with Schultea. Finally, Schultea's transfer to the position of assistant chief did not involve a decrease in salary or fringe benefits, ⁶ and Schultea does not allege that he was constructively discharged--i.e., that his loss of responsibilities as police chief was so intolerable that a reasonable person would have felt compelled to resign. See Jett, 798 F.2d at 754-55. Because a reasonable official could have concluded on these facts that Schultea could be reassigned to assistant chief "without treading on ground clearly protected by the Constitution," Williams, 6 F.3d at 294, the district court should have granted the Defendants' motion to dismiss as to the property interest claim.

IV

Schultea next alleges that the Defendants denied him a liberty interest qualifying for due process protection because the reassignment from police chief to assistant chief, combined with the false accusations that Schultea violated the City's purchasing ordinance, constitutes a loss of employment. Schultea additionally alleges that the Defendants unconstitutionally denied him an opportunity to clear his name. See Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5th Cir.1989) ("It is now beyond any doubt that discharge from public employment under circumstances that put the employee's reputation, honor or integrity at stake gives rise to a liberty interest under the Fourteenth Amendment to a procedural opportunity to clear one's name."), aff'd, 901 F.2d 61 (5th Cir.) (en banc), cert. denied, 498 U.S. 855, 111 S.Ct. 153, 112 L.Ed.2d 119 (1990).

As we stated in Moore v. Otero, 557 F.2d 435, 437-38 (5th Cir.1977) ...