Strother v. COLUMBIA-BRAZORIA INDEP. SCHOOL DIST., Civ. A. No. G-92-316.

• Decision Date: 15 December 1993
• Docket Number: Civ. A. No. G-92-316.
• Parties: Annetta STROTHER v. COLUMBIA-BRAZORIA INDEPENDENT SCHOOL DISTRICT, et al.
• Court: U.S. District Court — Southern District of Texas

839 F. Supp. 459

Annetta STROTHER v. COLUMBIA-BRAZORIA INDEPENDENT SCHOOL DISTRICT, et al.

Civ. A. No. G-92-316.

United States District Court, S.D. Texas, Galveston Division.

December 15, 1993.

COPYRIGHT MATERIAL OMITTED

Laurence W. Watts, Stephen P. Glover, Watts & Glover, Houston, TX, for plaintiff.

J. Timothy Brightman, Bracewell & Patterson, Houston, TX, for defendants.

ORDER OF DISMISSAL

KENT, District Judge.

Before the Court is Defendants' supplemental motion for summary judgment. For the reasons stated below, Defendants' motion is GRANTED.

This 42 U.S.C. § 1983 action arises out of the termination of Plaintiff Annetta Strother in the fall of 1990 as a cafeteria manager for Defendant Columbia-Brazoria Independent School District. Plaintiff claims that the actions of Defendants in this termination violated her due process rights under the Fourteenth Amendment.

When asserting a due process violation, a plaintiff must first establish a property interest in her job.

Property interests are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Batterton v. Texas Gen. Land Office, 783 F.2d 1220, 1222 (5th Cir.1986), cert. denied, 479 U.S. 914, 107 S.Ct. 316, 93 L.Ed.2d 289 (1986) (alteration in the original) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)).

These property rights can be created by state statute, local ordinance or rule, written contract, or mutually explicit understanding enforceable under state law as an implied contract. Johnson v. Southwest Miss. Regional Med. Ctr., 878 F.2d 856, 858 (5th Cir.1989); Irby v. Sullivan, 737 F.2d 1418, 1421 (5th Cir.1984). The property interest arises when the statute, rule, contract, or understanding limits an entity's power to terminate a plaintiff only for just cause. Henderson v. Sotelo, 761 F.2d 1093, 1095-96 (5th Cir.1985).

Neither party asserts that a state statute or written contract granted Plaintiff a property interest in her job. The parties assert conflicting standards this Court should use in examining whether Plaintiff's alleged property interest arose from mutually explicit understandings or an implied contract. The Court finds that both parties are in error.

Plaintiff relies on Stapp v. Avoyelles Parish Sch. Bd., 545 F.2d 527, 534 (5th Cir. 1977), in urging that she need not show that an enforceable contract existed, only that a non-subjective expectancy was created that she could only be fired for just cause. Although the Court can appreciate this interpretation of Stapp, it conflicts with the Supreme Court's decision in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and later Fifth Circuit decisions.

The Supreme Court held in Perry that although a plaintiff is not required to show a written contractual provision to support her property interest, she must at least show that an implied contract existed under state law. Perry, 408 U.S. at 601-02, 92 S.Ct. at 2699-2700. Additionally, in Raju v. Rhodes, 809 F.Supp. 1229, 1237 (S.D.Miss.1992), aff'd, 7 F.3d 1210 (5th Cir.1993), the district court stated that "a plaintiff must show an enforceable contractual right, whether explicit or implicit, establishing a legitimate claim of entitlement to continued employment under state law." Raju, 809 F.Supp. at 1241. The Fifth Circuit recently affirmed the district court's determination that the plaintiff had no protectable property interest in his employment. See Raju v. Rhodes, 7 F.3d at 1215 (5th Cir.1993).

Moreover, the Fifth Circuit has stated that "while an implied contract can be the source of a protected property interest in employment, it cannot do so in the absence of `mutually explicit understandings that support the employee's claim of entitlement.'" White v. Mississippi State Oil and Gas Bd., 650 F.2d 540, 543 (5th Cir.1981) (second alteration in the original) (quoting Perry, 408 U.S. at 601, 92 S.Ct. at 2699). After a review of a substantial amount of the pertinent case law, the Court concludes that Plaintiff's contentions are in error. See also Johnson, 878 F.2d at 858; Irby v. Sullivan, 737 F.2d at 1421.

At the other end of the spectrum, Defendants argue that school districts in Texas cannot impliedly contract with their employees regarding employment terms. As authority, Defendants cite Burris v. Willis Independent School District, 713 F.2d 1087, 1090-91 (5th Cir.1983). The Burris holding was based upon the pronouncements of Tex. Educ.Code Ann. § 28.23 (Vernon 1972) which only applies to teachers and school executive officers. See Burris, 713 F.2d at 1090. Plaintiff falls in neither of these categories. Thus, the strictures of Burris do not apply here.

After reviewing the case law, the Court concludes that to establish a property right, Plaintiff must show, at the least, an implied contract as defined by Texas law based upon mutually explicit understandings.

In the instant case, the only evidence identified by the parties regarding Plaintiff's possible property rights are (1) a written policy of the School District regarding employees like Plaintiff, (2) oral representations made to Plaintiff by her previous direct supervisor, Eleanor Stuckey, (3) previous written employment contracts (Plaintiff had no written employment contract for the school year in which she was fired), (4) an unwritten-but-understood grievance procedure of the School District for employees like Plaintiff who were terminated, and (5) a letter of reasonable assurance of employment.

In 1987, about three years before Plaintiff was terminated, the School District adopted a written policy which contained two provisions that affect Plaintiff's claim of a property interest. The first provision specifically stated that employees in Plaintiff's position "shall serve at will, are not employed for any specified length of time, and have no property right in their employment." The second provision stated, "No employee other than the Superintendent has any authority to make oral representations or agreements for employment ... or to make any other agreement or representation regarding employment."

Plaintiff's primary contention is that Stuckey's representations to Plaintiff that Stuckey would fire employees in Plaintiff's position only for cause constituted mutually explicit understandings which gave rise to Plaintiff's property interest. Plaintiff's evidence shows that Stuckey believed that her assertions were a policy of the School District although she was not aware of the established, contrary, written policy.

Plaintiff also contends that Stuckey had the authority to make oral representations regarding employment terms.¹ But, Plaintiff never contends that the superintendent explicitly gave Stuckey the authority to alter the written policy of the District. Plaintiff only contends that the superintendent gave her the power to hire and fire, which she admits had to conform to the District's policy. In her response to the summary judgment motion, Plaintiff states that the assistant superintendent "admitted that the Superintendent had the authority to delegate decision making authority to other administrators regarding employment terms." But, the Court finds that the evidence cited by Plaintiff as proof of this assertion does not support Plaintiff's contention at all.²

Plaintiff also produces evidence that one of the District's assistant superintendents believed that Stuckey "never exceeded her authority." But, this assistant was never specifically asked if Stuckey exceeded her authority when she purported to give Plaintiff property rights in her job, contrary to written policy.

In Staheli v. University of Mississippi, 854 F.2d 121, 125 (5th Cir.1988), the plaintiff was a professor at a university that had a formal tenure policy. The policy outlined several broad requirements that a professor must fulfill to become tenured, one of which was publishing papers in prestigious journals. The plaintiff's previous direct supervisor had assured him over the previous four years that he was making satisfactory progress towards tenure and instructed the plaintiff to focus on obtaining speaking engagements, not publishing papers. The university eventually denied the plaintiff tenure, partially because he had no published papers, and he sued. The plaintiff alleged that he had a property interest in his job because he fulfilled the requirements outlined in the formal policy and because of the mutual understanding with his previous supervisor that he would be tenured.

The Fifth Circuit affirmed a summary judgment that plaintiff possessed no property interest in continued employment. The court held that the very existence of a formal tenure policy negated the possibility of "de facto" tenure. The court also stated, with reference to the representations of the plaintiff's supervisor, that the plaintiff failed to prove that the supervisor spoke for the university.

Moreover, even if the supervisor did speak for the university, the court stated, "when formal rules and informal understandings conflict, the formal rules control. In other words, when the state provides an explicit and formal policy governing entitlement to a job, informal and customary understandings cannot create a property interest in the face of the formal rules." Staheli, 854 F.2d at 125; see Scanlon v. Department of Mental Health, 828 F.Supp. 421, 425 n. 6 (S.D.Miss. 1993) (quoting Staheli); Raju, 809 F.Supp. at 1243 (quoting Staheli).

Informal understandings may lead to a property interest only in one of two ways: (1) if there is no officially promulgated position; Staheli, 854 F.2d at 125; Scanlon, 828 F.Supp. at 425; or (2) if they are consistent with official law. Raju, 809 F.Supp. at 1242. Thus, even if Stuckey spoke on behalf of the School,...