Stow v. Cochran

• Decision Date: 01 June 1987
• Docket Number: 86-1945,Nos. 86-1741,s. 86-1741
• Citation: 819 F.2d 864
• Parties: Porter T. STOW, Appellee, v. E.W. COCHRAN, Mayor of the City of Corning, Arkansas, and as an Individual; Barry Fielder, Chief of Police for the City of Corning, Arkansas, and as an Individual; Gene Kellett; Edwin Ahrent; Clarence Thomas; and Dorothy Johnson, Members of the City Council of the City of Corning, Arkansas; and The City of Corning, Arkansas, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 864

819 F.2d 864

Porter T. STOW, Appellee, v. E.W. COCHRAN, Mayor of the City of Corning, Arkansas, and as an Individual; Barry Fielder, Chief of Police for the City of Corning, Arkansas, and as an Individual; Gene Kellett Edwin Ahrent; Clarence Thomas; and Dorothy Johnson Members of the City Council of the City of Corning Arkansas; and The City of Corning, Arkansas, Appellants.

Nos. 86-1741, 86-1945.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1987.

Decided June 1, 1987.

Winston Bryant, North Little Rock, Ark., for appellants.

Clifford M. Cole, Piggott, Ark., for appellee.

Before ROSS and BOWMAN, Circuit Judges, and NANGLE, ^* District Judge.

BOWMAN, Circuit Judge.

Defendants appeal from a judgment entered in accordance with a jury verdict for plaintiff Porter Stow on his claim under 42 U.S.C. Sec. 1983 that he was discharged from his position as a patrolman with the Corning, Arkansas Police Department without procedural due process. On appeal defendants argue that (1) Stow had no "property" interest in his position; (2) the individual defendants were entitled to qualified immunity; (3) the District Court erred in permitting Stow to testify as to prejudicial hearsay statements made by two persons who were not present and did not testify at trial; and (4) the District Court abused its discretion in awarding $17,290 in attorney's fees to plaintiff. For the reasons discussed below, we hold that as a matter of law Stow had no property right to continued employment in his position as a patrolman and that he thus could be discharged without procedural due process. There being no constitutional violation, Stow has failed to make out a claim under Sec. 1983. We reverse.

I.

Porter T. Stow was hired under an oral employment contract as a police dispatcher by the City of Corning, Arkansas in May 1974. In January 1978, the City issued to its employees a handbook entitled "Personnel Policies and Employee Handbook," which was admitted into evidence at trial as Defendant's Exhibit (Def. Exh.) 7. In August 1979 Stow was appointed to the position of patrolman. Shortly thereafter then police chief Louis Walls stated to Stow and the other officers that they were, in Walls's view, "lifetime" employees. Trial Transcript (Tr.) at 127. Walls explained that by such an assurance he was attempting to impart a sense of professionalism and job security among his officers. Stow testified that another former police chief, Leonard Bell, also told him (sometime in 1983 or 1984) that he was a "full-time" employee and "could not be fired for just any reason, that it had to be for an awfully good reason to be fired." Tr. at 86-87.

The current police chief, defendant Barry Fielder, assumed his position in October 1984. Shortly thereafter, Fielder recommended to the Mayor, defendant E.W. Cochran, that Stow be discharged. Cochran accepted Fielder's recommendation. Stow received a letter, dated December 18, 1984 and signed by both Fielder and Cochran, informing him of his discharge. The letter listed five reasons for his being discharged. ¹ Stow thereafter requested a hearing before the Mayor and the City Council. A hearing was scheduled for January 11, 1985 during a regular council meeting, but that meeting was cancelled because of bad weather and an illness of the Mayor's wife. The meeting and hearing were rescheduled for January 14, but Stow and his attorney apparently were not notified of this and therefore were not present.

Stow then filed this action on January 15, 1985. After a two-day trial, the jury returned a verdict for Stow, finding that he had a property right to continued employment in his position as a patrolman and that he was unjustifiably discharged without procedural due process. Stow was awarded $5000 in compensatory damages and $1000 in punitive damages against each individual defendant (Mayor Cochran and Chief Fielder) and $5750 in compensatory damages against the City. The District Court entered judgment in accordance with the jury verdict. In 86-1741 defendants appeal from that judgment. The District Court thereafter awarded plaintiff $17,290 in attorney's fees pursuant to 42 U.S.C. Sec. 1988. In 86-1945 defendants appeal from that order. The two appeals have been consolidated for decision.

II.

For nearly a century the Arkansas courts consistently have adhered to the common law rule that an employment contract that does not bind the employee to serve for a specified length of time may be terminated at will by either party, even though the contract provides that the employee can be discharged only for cause. See Gaulden v. Emerson Electric Co., 284 Ark. 149, 680 S.W.2d 92, 93 (1984). This rule is commonly referred to as the "employment at will" doctrine. Thus, in the absence of evidence to the contrary, Stow's employment is presumed to be at will, providing him with no constitutionally protected property interest in his patrolman position. Stow concedes that he had no written employment contract with a definite term of duration and that there was no state statute or regulation or city ordinance that provided him with a property interest. Cf. Brockell v. Norton, 688 F.2d 588, 591 (8th Cir.1982). Stow contends, however, that he had a property interest under any of four theories.

First, Stow asserts a property interest to continued employment by virtue of a two-week notice requirement ² in order to be paid for vacation time accrued or earned but not taken at the time of an employee's resignation. Stow contends that this notice requirement effectively bound him to serve for a specified length of time, and, thus, that his employment contract was not terminable at will by either party. This exact contention has been rejected, however, by the Arkansas Supreme Court. See French v. Dillard Department Stores, 285 Ark. 332, 686 S.W.2d 435, 436 (1985) ("Such a provision ... does not assure the employee of a job for any specified length of time. Rather to the contrary, it confirms the employee's right to quit."); cf. Bryant v. Southern Screw Machine Products Co., 288 Ark. 602, 707 S.W.2d 321, 322 (1986) (provision in employee handbook that after 60-day probationary period employee entitled to certain fringe benefits did not change employee's at-will status).

Second, Stow claims a property right was created by virtue of an "established policy for disciplinary action" against police officers. Stow contends that there was an unwritten "de facto" procedure established by the City when taking disciplinary action against police officers. Under that procedure, (1) the subject officer would be temporarily suspended, (2) the department (usually the chief of police) would conduct an investigation and make a recommendation to the Mayor, (3) the officer would receive a hearing before the Mayor and the City Council, and (4) thereafter the Mayor would take appropriate disciplinary action. The evidence was sufficient, Stow contends, to show a de facto policy that required the City to afford Stow a hearing prior to any disciplinary action.

Though the evidence at trial did tend to support Stow's claim of the existence of such a de facto policy, his theory is insufficient as a matter of law to support a property right to continued employment. This Court recently rejected the contention that the existence of a grievance procedure alone is sufficient to create a property interest. See Hogue v. Clinton, 791 F.2d 1318, 1324 & n. 10 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986). The Court in Hogue stated that "[g]rievance procedures that do not establish any grounds upon which termination must be based do not in themselves create a property interest in employment." Id. 791 F.2d at 1324. Like the grievance procedures in Hogue, the de facto procedure here "creates only an expectancy of review, not of continued employment" and "place[s] no significant substantive restrictions" on the decisionmaker's discretion. Id.; see also id. at n. 10 ("That an employee can expect review upon termination does not in itself create a legitimate expectancy of continued employment."); Cato v. Collins, 539 F.2d 656, 660-61 (8th Cir.1976); Dorr v. County of Butte, 795 F.2d 875, 877 (9th Cir.1986); Skeets v. Johnson, 805 F.2d 767, 775-81 (8th Cir.1986) (Bowman, J., dissenting) (citing other cases), rev'd on reh'g, 816 F.2d 1213 (8th Cir.1987) (en banc); Weinstein v. University of Illinois, 811 F.2d 1091, 1097 (7th Cir.1987) (proffer of procedure does not establish property interest in absence of substantive rules of entitlement, even if opportunity for hearing afforded others in past).

Stow cites Wilson v. Robinson, 668 F.2d 380, 382 & n. 2 (8th Cir.1981) for the proposition that "procedural rights" alone can create a substantive property right to continued employment. See also Gerrin v. Hickey, 464 F.Supp. 276, 280 (E.D.Ark.1979) ("Applicable personnel regulations can create a protected interest if they reflect a de facto policy of established guidelines to be followed prior to dismissal."). Though Wilson does indeed stand for that proposition, we have serious reservations as to its current validity in view of recent Supreme Court decisions issued after Wilson.

In Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), the Supreme Court rejected the proposition that procedures alone can create a substantive property right:

Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. If officials may transfer a prisoner "for whatever reason or for no reason at all," there is no such interest for process to protect. The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.

Id. at 250-51, 103 S.Ct. at 1748-49 (citations and...