Singleton v. Cecil, No. 97-1726

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before BOWMAN, Chief Judge, MCMILLIAN, RICHARD S. ARNOLD, FAGG, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY; MAGILL; MORRIS SHEPPARD ARNOLD; RICHARD S. ARNOLD, Circuit Judge, with whom MCMILLIAN and WOLLMAN
• Citation: 176 F.3d 419
• Parties: 14 IER Cases 1793 David C. SINGLETON, Appellant, v. Don CECIL, Individually and in his official capacity as Chief of Police; Harley Moyer; Ivan Parker; Kevin Tidwell; Della Price; City of Advance, Appellees.
• Docket Number: No. 97-1726
• Decision Date: 27 April 1999

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176 F.3d 419 14 IER Cases 1793 David C. SINGLETON, Appellant,
v.
Don CECIL, Individually and in his official capacity as
Chief of Police; Harley Moyer; Ivan Parker;
Kevin Tidwell; Della Price; City of
Advance, Appellees. No. 97-1726. United States Court of Appeals,
Eighth Circuit. Submitted Jan. 11, 1999.
Decided April 27, 1999.

D. Keith Henson, St. Louis, MO, argued (Matthew R. Shetley, Kennett, MO, on the brief), for Appellee.

Before BOWMAN, Chief Judge, MCMILLIAN, RICHARD S. ARNOLD, FAGG, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, En Banc.

MAGILL, Circuit Judge.

Following the analysis of our sister circuits and Supreme Court precedent, we affirm the district court's ¹ holding that, in Missouri, an at-will employment state, a discharged municipal at-will employee does not have a section 1983 substantive due process occupational liberty interest under the Fourteenth Amendment.

I.

A. Facts

David Singleton worked for the City of Advance, Missouri as a police officer from 1990 until his termination in 1994. The City of Advance did not have a written employment agreement with Officer Singleton. Officer Singleton's employment was terminable at will, either by the mayor with approval of a simple majority of the city council, or by a two-thirds vote of the city council. See Mo.Ann .Stat. § 79.240 (1998); State ex rel. Lupo v. City of Wentzville, 886 S.W.2d 727, 730-31 (Mo.Ct.App.1994). Neither state nor local law limited the reasons for which Officer Singleton could be discharged nor afforded him the right to a hearing in connection with his discharge. At the time of Officer

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Singleton's discharge, defendant Don Cecil was Advance's police chief, and defendants Harley Moyer, Ivan Parker, Kevin Tidwell, and Della Price were members of Advance's city council. William Bradshaw, the mayor of Advance, was not a named defendant.

During the period of his employment, Officer Singleton became concerned that Chief Cecil had abused an incentive program designed to facilitate government purchases by purchasing a car for his own benefit and use under the program. ² Despite his belief that Chief Cecil had engaged in illegal activity, Officer Singleton never notified any law enforcement officials, the mayor, or the city council of his concern. On the morning of March 8, 1994, Officer Singleton's wife, Joann, called their daughter, Sabrina, on a cordless telephone. During the conversation, they began discussing Chief Cecil, and Joann said she wanted to "set up" Chief Cecil by hiring someone to bribe him. Unbeknownst to Joann and Sabrina, this statement was recorded by David George, a local private investigator who happened to be scanning radio frequencies at the time. ³ Later that day, George contacted Chief Cecil and Mayor Bradshaw and played the recorded conversation for them. George also gave Chief Cecil a copy of the recording. Chief Cecil then visited the members of the city council and played the recording for them individually. Each council member recognized Joann's and Sabrina's voices on the recording and, at a special meeting on March 11, 1994, they unanimously voted to terminate Officer Singleton's employment. They did not include a reason for discharging Officer Singleton in his termination letter. Nor did they publicly divulge any reason for the discharge.

Officer Singleton then initiated this suit under 42 U.S.C. § 1983 against Chief Cecil, the four council members, and the City of Advance. He alleged that his termination by the defendants violated his rights of free speech, due process, intimate association, and privacy. His free speech allegation rested on the premise that he was discharged in an effort to keep him silent concerning Chief Cecil's car purchase. In response, the council members divulged that they based the termination decision solely on Joann's plot to bribe Chief Cecil. The district court granted summary judgment in favor of the defendants on all of Officer Singleton's claims. Particularly, the district court concluded that Officer Singleton could not prevail on his free speech claim because he could not demonstrate any causal connection between Chief Cecil's car purchase and his termination. See Singleton v. Cecil, 955 F.Supp. 1164, 1166-67 (E.D.Mo.1997). The district court also found that Officer Singleton could not prevail on any procedural due process claims because, as an at-will employee, he had no liberty or property interest in his job. See id. at 1167. Finally, the district court held that Officer Singleton's claims that he was deprived of his rights of intimate association and marital privacy failed because "the defendants had a legitimate, good faith belief that plaintiff, with his family, was engaging in improper conduct by conspiring to bribe the Chief of Police." Id.

B. Missouri At-Will Employment Law

Because the "Due Process Clause does not purport to supplant traditional tort law," Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (quotations omitted), and because property interests protected

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by the Due Process Clause are not created by the Constitution, but rather by independent sources such as state law, municipal ordinance, or contract, see Bishop v. Wood, 426 U.S. 341, 344 & n. 7, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577-78, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718 & n. 3 (8th Cir.1995), we briefly set forth the pertinent Missouri law on at-will employment. In this case, neither state law, municipal law, a collective bargaining agreement, or an employment contract afforded Officer Singleton any property interest in his job. In contrast, as an at-will employee in Missouri, he could be discharged "for cause or without cause." Dake v. Tuell, 687 S.W.2d 191, 193 (Mo.1985). Indeed, he could even be discharged "for no reason or for an arbitrary or irrational reason." Shawcross v. Pyro Prods., Inc., 916 S.W.2d 342, 343 (Mo.Ct.App.1995) (quotations omitted).

Notwithstanding the broad grant to employers of the power to fire at-will employees for any or no reason, Missouri law affords a discharged at-will employee such as Officer Singleton the ability to seek judicial redress. Such an employee may assert a cause of action for tortious interference with employment against third-parties, i.e., non-employers such as George, for inducing the discharge. See Stanfield v. National Elec. Contractors Ass'n, Inc., 588 S.W.2d 199, 202 (Mo.Ct.App.1979); see also Haddle v. Garrison, --- U.S. ----, ----, 119 S.Ct. 489, 492, 142 L.Ed.2d 502 (1998) (explaining that "third-party interference with at-will employment relationships ... has long been a compensable injury under tort law"). He also may bring a tortious interference claim against his direct supervisor and employer if he presents "evidence eliminating any business justification at all for the termination." Eggleston v. Phillips, 838 S.W.2d 80, 83 (Mo.Ct.App.1992). In addition, and despite the typical prohibition against bringing wrongful discharge claims, such an employee may allege that his discharge violated Missouri public policy. See Shawcross, 916 S.W.2d at 343. Officer Singleton has not attempted to assert any state law claims in this case.

II.

On appeal, a divided panel of this court originally affirmed the district court in all respects. See Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir.), vacated, 133 F.3d 631, 636 (8th Cir.1998) (Singleton I ). After granting Officer Singleton's petition for rehearing, the panel, with one judge dissenting, affirmed most of the district court's grant of summary judgment, but reversed on the sole ground that it believed the defendants deprived Officer Singleton of his occupational liberty, which was ostensibly protected by substantive due process. See Singleton v. Cecil, 155 F.3d 983, 986-90 (8th Cir.), vacated, 155 F.3d 983, 992 (8th Cir.1998) (Singleton II ).

In the course of reversing the district court, the panel majority conceded that Officer Singleton was not deprived of any life, liberty, or property interest that would support a procedural due process claim. See id. at 987, 989. Under Eighth Circuit law, this concession should have precluded Officer Singleton from proceeding on a substantive due process theory. See Weimer v. Amen, 870 F.2d 1400, 1405-06 (8th Cir.1989) ("to the extent our cases recognize a constitutional right to substantive due process, that right is no greater than the right to procedural due process"); Buhr v. Buffalo Pub. Sch. Dist. No. 38, 509 F.2d 1196, 1202 (8th Cir.1974); accord Clark v. Whiting, 607 F.2d 634, 641-42 n. 17 (4th Cir.1979) (absence of a liberty or property interest in connection with a procedural due process claim is fatal to the plaintiff's purported substantive due process claim); Weathers v. West Yuma County Sch. Dist. R-J-1, 530 F.2d 1335, 1340-42 (10th Cir.1976) (same); Jeffries v. Turkey Run Consol. Sch. Dist., 492 F.2d 1, 4 (7th Cir.1974) (Stevens, J.) (same).

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Nevertheless, the panel majority elected not to follow this authority. Acknowledging that "the Fourteenth Amendment does not create any generalized free-floating right against depriving someone of 'due process' in the abstract," Singleton II, 155 F.3d at 987, the panel majority held that Officer Singleton had a general "occupational liberty"--referred to as "the right 'to engage in any of the common occupations of life' "--that was entitled to substantive due process protection. Id. (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). The panel majority then held that Officer Singleton had been deprived of his occupational liberty on two different bases: (1) by speculating that if the reason for discharging him became known then it might be difficult for him to secure employment as a police...