Shore v. Howard, Civ. A. No. CA 4-75-84.

• Citation: 414 F. Supp. 379
• Decision Date: 20 May 1976
• Docket Number: Civ. A. No. CA 4-75-84.
• Parties: Edward E. SHORE and L. L. Morriss, Jr. v. Karl HOWARD and Andy Fournier.
• Court: U.S. District Court — Northern District of Texas

414 F. Supp. 379

Edward E. SHORE and L. L. Morriss, Jr. v. Karl HOWARD and Andy Fournier.

Civ. A. No. CA 4-75-84.

United States District Court, N. D. Texas, Fort Worth Division.

May 20, 1976.

COPYRIGHT MATERIAL OMITTED

Craig D. Caldwell, Fort Worth, Tex., for plaintiffs.

Tim Curry, Criminal Dist. Atty., Joe Shannon, Asst. Crim. Dist. Atty., Tarrant County, Fort Worth, Tex., for defendants.

MEMORANDUM, ORDER OF DISMISSAL, AND GRANT OF SUMMARY JUDGMENT

MAHON, District Judge.

Plaintiffs in this action, Edward E. Shore and L. L. Morris, Jr., claim that they were wrongfully dismissed from their positions of employment in the Adult Probation Office of Tarrant County, Texas, by Defendants Karl Howard and Andy Fournier. Contending that Defendants have denied them the rights, privileges, and immunities guaranteed by the Fifth and Fourteenth Amendments to the Constitution, Plaintiffs assert that their dismissals give rise to causes of action under 42 U.S.C. §§ 1982, 1983, 1985, & 1986, and that the Court is vested with jurisdiction over these causes of action by 28 U.S.C. § 1343. Defendants have filed various motions both to dismiss and for summary judgment, all of which have been thoroughly briefed by counsel for both sides and supported by affidavits. These motions are now before the Court.

I. FACTUAL BACKGROUND

To put this lawsuit in perspective, it is necessary to set forth facts that occurred prior to Plaintiffs' employment with the Tarrant County Adult Probation Office.

A. Tarrant County Civil Service Commission

On 21 February 1972, pursuant Tex.Rev. Civ.Stat.Ann. art. 2372h-6, the Tarrant County Commissioners' Court ordered the creation of a Civil Service System in Tarrant County and the appointment of three individuals to a Tarrant County Civil Service Commission. That Order (No. 41583), in accordance with art. 2372h-6, excluded from the category of career service, among others, "persons employed through special grants or funding where the County's portion of the salary contribution is less than 100%."

On 7 August 1972, the Commissioner's Court approved adoption of the Rules of the Tarrant County Civil Service Commission (Order No. 41913). Rule VII sets forth the procedure for discipline of a Civil Service employee, which encompasses suspensions, demotions, and removals. Section 7.2 of Rule VII lists numerous causes for which career service personnel can be disciplined. Section 7.3 provides for an appeal to the Commission by any officer or employee in the classified Civil Service who is disciplined, and section 7.4 governs the procedure and conduct of that appellate hearing.

On 19 February 1973, by Order No. 42355, the Commissioner's Court adopted the following ruling by the Civil Service Commission:

. . . Employees compensated by funding through federal grants are in a special category. These individuals will be "non-civil service" although they receive most of the same benefits as county employees. The benefit program was established as a portion of the county's in-kind services.

Consideration will be given at the termination of the grant as to the disposition of the program. . . .

On 10 March 1975, on the recommendation of its legal advisor, the Commissioner's Court noted that proper notice had not been given for several of its meetings as required by the Texas Open Meetings Law, Tex.Rev. Civ.Stat.Ann. art. 6252-17, and ordered that the Civil Service System be declared a nullity. The Commissioner's Court specifically ordered invalidated, in Order No. 44022, previous Orders No. 41583, 41913, 41934, 42353, 42379, and 43259. On 5 May 1975, however, pursuant to an attorney general's opinion, the Commissioner's Court rescinded that part of Order No. 44022 declaring the Civil Service System and the above-mentioned orders to be a nullity (Order No. 44196).

B. The Positions of Adult Probation Volunteer-Coordinators at the Tarrant County Adult Probation Office

On 28 November 1972, the Office of the Governor of the State of Texas approved the application of the Tarrant County Adult Probation Office for a grant of federal funds through the Texas Criminal Justice Council for an Adult Probation Volunteer-Coordinators program (Grant No. 2-F2-1329). The project duration was to be for two years, from 1 January 1973 through 31 December 1974, with a total funding of $93,295.00 from federal funds and $31,034.00 from the grantee's funds. Of this amount, the Texas Criminal Justice Council supplied $45,462.00 for the first year; the grantee's contribution for the first year was to be $15,601.00. In addition to professional, travel, equipment, and operating expenses, the program was to pay the salaries of the following personnel: (1) 25% of the salary of the one Chief Probation Officer, (2) 25% of the salary of the three Probation Officers, (3) 100% of the salary of three Volunteer-Coordinators, and (4) 100% of the salary of one secretary. The purpose of the program was to provide for Adult Probation Volunteer-Coordinators to be responsible for recruiting, training, and supervising volunteer probation officers, in order to generally improve the probationary system in Tarrant County.

On 31 October 1973, the project received from the Texas Criminal Justice Council an extension of the first year's grant, from 31 December 1973 to 28 February 1974. The Office of the Governor of the State of Texas awarded a grant of $45,500.00.¹ to the project on 26 April 1974, for second year funding from 1 March 1974 to 28 February 1975.

On 13 February 1975, the project again received an extension from the Texas Criminal Justice Council for the period from 28 February 1975 to 31 March 1975. On 30 April 1975, however, the Governor of the State of Texas disapproved the application for $45,000.00 funding for a third-year continuation of the program. The remaining unexpended project funds ($3,032.31) were then refunded to the Texas Criminal Justice Council.

By the uncontradicted affidavit of, and copies of records submitted by, Robert Earl Bogard, Assistant County Auditor for Tarrant County, Texas, there are no records filed in the Office of the Tarrant County Auditor to reflect the existence of Adult Probation-Volunteer Coordinator as a job position in the county-level government of Tarrant County. Instead, the salaries and benefits of the Adult Probation-Volunteer Coordinators were paid entirely from monies granted by the Texas Criminal Justice Council, which were kept and disbursed from a separate fund (the 35th fund) maintained by the Office of the Tarrant County Auditor. The individuals who held the positions of Adult Probation-Volunteer Coordinators were "grant temporary employees," which meant that they could be terminated at any time during the period of the grant without prior approval of the funding agency. The positions that Plaintiffs held have ceased to exist.

C. The Employment and Dismissal of Plaintiffs as Adult Probation-Volunteer Coordinators

Both Plaintiffs are adult Caucasian males. The records of the Tarrant County Adult Probation Office indicate that prior to Plaintiff Shore's employment, he had been a Coordinator in the Inmate Training Program of the Tarrant County Jail, a Coordinator/Counselor in the NAB/JOBS Program Vocational Guidance Systems, and a volunteer for work at the Federal Correctional Institute in Fort Worth, Texas. Plaintiff Shore is a member of the Texas Corrections Association. Prior to his employment, Plaintiff Morriss had been Pastor of the Western Hills Baptist Church in Fort Worth, Texas, and Associate Pastor of the Cliff Temple Baptist Church in Dallas, Texas. Plaintiff Morriss had had several years experience in general counseling and in transactional analysis therapy.

At all times relevant to this action, Defendant Howard was the Director of the Tarrant County Adult Probation Office, and Defendant Fournier was the Administrative Assistant in that Office.

On or about 1 March 1973, Plaintiff Morriss was hired by Defendant Howard to work as an Adult Probation-Volunteer Coordinator in the Tarrant County Adult Probation Office. On or about 1 February 1974, Plaintiff Shore was similarly employed. Neither Plaintiff worked in the Tarrant County Adult Probation Office by virtue of any contract of employment. They both took a Tarrant County Civil Service examination and both enjoyed some of the same benefits as did Tarrant County Civil Service employees. Their position and pay were based on the Tarrant County Index and Job Classification System. Both Plaintiffs received overall ratings of "above standard" from their Unit Supervisor on 22 January 1975. These ratings were for the periods 1 February 1974 to 1 January 1975 for Plaintiff Morriss. Both ratings were reviewed by Defendant Fournier.

On 1 February 1974, both Plaintiffs were terminated from their employment by Defendant Howard acting in his official capacity. At the time of their termination, Plaintiffs were earning $921.00 per month in their positions as Adult Probation-Volunteer Coordinators. Plaintiffs assert that they requested a hearing from both Defendant Howard and the Personnel Director of Tarrant County, and that they were at that time informed that they were not entitled to the Tarrant County Civil Service rules and regulations. Neither Plaintiff has ever made a written request for a hearing before the District Judges of Tarrant County, Texas, nor has either Plaintiff appeared before a meeting of those Judges to request a hearing.

It is stipulated that at all times relevant to this action, Defendant Howard was not an employee of Tarrant County, Texas, but rather was employed by the District Judges of Tarrant County, Texas, pursuant to Tex. Rev.Civil Stat. art. 2292-2.

II. CONTENTIONS OF THE PARTIES

Plaintiffs claim that, because of the nature of their employment, they became employees of Tarrant County, Texas, and subject to its Civil Service rules and regulations. In this regard, they contend that the notice given for...