Thompson v. Adams

• Decision Date: 14 February 2001
• Docket Number: No. 00-2051,00-2051
• Citation: 268 F.3d 609
• Parties: (8th Cir. 2001) DON THOMPSON AND CARYL THOMPSON, APPELLANTS, v. CARL ADAMS, ED BEAN, NIELS ESKILDSEN, HARRY GRAHAM, AND DOUG VANDEMARK, SR., EACH INDIVIDUALLY AND IN HIS CAPACITY AS CITY COUNCILMAN; BOB DOOLIN, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR; AND CITY OF BULL SHOALS, A POLITICAL SUBDIVISION OF THE STATE OF ARKANSAS, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 609

268 F.3d 609 (8th Cir. 2001)

DON THOMPSON AND CARYL THOMPSON, APPELLANTS, v. CARL ADAMS, ED BEAN, NIELS ESKILDSEN, HARRY GRAHAM, AND DOUG VANDEMARK, SR., EACH INDIVIDUALLY AND IN HIS CAPACITY AS CITY COUNCILMAN;

BOB DOOLIN, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR; AND CITY OF BULL SHOALS, A POLITICAL SUBDIVISION OF THE STATE OF ARKANSAS, APPELLEES.

No. 00-2051

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 14, 2001

Filed: October 12, 2001

Appeal from the United States District Court for the Western District of Arkansas.

Before Wollman, Chief Judge, and Bowman and Morris Sheppard Arnold, Circuit Judges.

Morris Sheppard Arnold, Circuit Judge

Approximately five weeks after Caryl Thompson addressed the city council of Bull Shoals, Arkansas, with respect to actions of various council members that she felt were unlawful, the mayor, with the support of the council, fired her husband Don Thompson, from his position as city street superintendent. He had worked for the city for twenty years.

The Thompsons sued the city, the mayor, and the council members, alleging that they denied Mr. Thompson's due process rights under the fourteenth amendment by firing him without notice, a statement of reasons, and a pre-termination hearing, and that the post-termination hearing that he received was inadequate because of bias on the part of the mayor and the council members. The Thompsons also contended that Mr. Thompson was fired in retaliation for his wife's remarks at the council meeting, thus violating their rights under the first amendment. (For the sake of simplicity, hereafter we refer to the defendants collectively as "the city.")

In their complaint and obliquely in their appellate brief, the Thompsons also seem to assert an equal protection claim under the fourteenth amendment, but apparently they did not pursue that issue in the district court. In their appellate brief, they discuss equal protection questions only as support for their contention that the city's purported reasons for firing Mr. Thompson were pretextual. We therefore conclude that any equal protection claim that was raised has been abandoned.

The defendants moved for summary judgment, arguing first that Mr. Thompson was an "at-will" employee under Arkansas law and therefore possessed no due process rights with respect to his job, and second that no evidence existed to show a causal link between Mrs. Thompson's remarks and Mr. Thompson's firing. The district court granted summary judgment to the defendants on those grounds, and the Thompsons appeal. We affirm the judgment of the district court.¹

I.

We turn first to Mr. Thompson's due process claim. As a threshold issue, we must decide whether, as a matter of law, Mr. Thompson was protected by the due process guarantees of the fourteenth amendment, that is, whether the terms of his employment were such that, under the Constitution, he had a property interest in his job. Even if he did, he would not necessarily be entitled to reinstatement; the city would, however, have to grant him a hearing, if he requested one, where he could be informed of the grounds for his firing and where he could respond to the reasons given for his firing. See Perry v. Sindermann, 408 U.S. 593, 603 (1972).

Mr. Thompson was protected by the due process guarantees of the fourteenth amendment only if he had "a legitimate claim of entitlement" to his job, Board of Regents v. Roth, 408 U.S. 564, 577 (1972). We do not look to federal law to determine whether such a claim exists; rather, state law or some other "independent source," id., amounting to "mutually explicit understandings," Perry, 408 U.S. at 601, must establish such an entitlement.

The gist of Mr. Thompson's argument is that although Arkansas law customarily considers employment relationships to be "at will," i.e., without security for employees that they will be fired only for cause, see Gladden v. Arkansas Children's Hospital, 728 S.W.2d 501, 504-05 (Ark. 1987), see also Crain Industries, Inc. v. Cass, 810 S.W.2d 910, 913 (Ark. 1991), and Drake v. Scott, 823 F.2d 239, 241 (8th Cir. 1987), cert. denied, 484 U.S. 965 (1987), the city's employment policies and procedures manual is an "independent source," Roth, 408 U.S. at 577, that establishes a property interest for a city employee in his or her job. In this respect, Mr. Thompson contends that, at the least, he has provided sufficient evidence to show that there is a genuine issue of material fact, see Fed. R. Civ. P. 56(c), on the question of whether the city's employment manual establishes security for an employee against being fired except for cause and, therefore, provides Mr. Thompson with a property right in his job.

II.

Mr. Thompson directs our attention first to the employment manual's section on "matters affecting the status of employees." Language in that section delineates a grievance procedure in the event of disciplinary action (including firing an employee) and states that the city will give written notice of any disciplinary action to be, or already, taken. The manual also states that each employee is entitled to review of any disciplinary action by means of successive consideration of an employee's written grievance by the employee's immediate supervisor, the employee's department head, the mayor, and the city council. Finally, the manual includes the statement that when the city intends to fire an employee, the city will provide "written reasons that can be supported at a pre-termination hearing." Mr. Thompson asserts that all of these provisions amount to a promise by the city that it will not fire any employee except for cause and thus establish the necessary property interest for him.

The manual also states, however, in the "employment policies" section, that the city is an "at-will employer... [and] may terminate the employment relationship at any time for any reason with the understanding that [the city] has [no] obligation to base that decision on anything but... intent not to continue the employment relationship." That section of the manual goes on to add that "[n]o policies, comments, or writings made [in this manual] or during the employment process shall be construed in any way to waive [the] provision" regarding "at-will" employment. The essence of this provision is repeated in the section on "matters affecting the status of employees," which declares that "all employment relationships with the City... are on an at-will basis." That text concludes with the statement that "although the City... hopes that the relationship with employees is long term and mutually rewarding, the City reserves the right to terminate the employment relationship of any employee at any time."

The Arkansas Supreme Court has flatly stated that unless an employment manual contains an express provision that the employer may not fire an employee except for cause, the employment relationship is "at will." See Gladden, 728 S.W.2d at 505. Both this court, following Arkansas law, and the Arkansas Supreme Court have consistently held that, where an employment manual contains no language declaring that an employee will be fired only for cause, nothing abrogates the employee's "at-will" status, short of an explicit promise to the contrary in a seniority agreement, see Crain Industries, Inc., 810 S.W.2d at 911-12, or in oral statements by a supervisor reassuring employees that they would not be fired immediately for failing a drug test, see Qualls v. Hickory Springs Manufacturing Company, Inc., 994 F.2d 505, 506, 509 (8th Cir. 1993). An implied promise is not enough. See Gladden, 728 S.W.2d at 505.

Neither a list of grounds for firing an employee, see Mertyris v. P.A.M. Transport, Inc., 832 S.W.2d 823, 825 (Ark. 1992), see also Gladden, 728 S.W.2d at 505 nor a description of increasingly more serious disciplinary actions to which an employee may be subject, see Black v. Barnett, 999 F.2d 1295, 1296 (8th Cir. 1993) (per curiam), nor the delineation of a process for review of disciplinary actions, see Gladden, 728 S.W.2d at 505, nor a reference to a mandatory pre-termination hearing, see Johnson v. City of West Memphis, 113 F.3d 842, 844 (8th Cir. 1997), is sufficient to alter an employee's "at-will" status in Arkansas. In addition, the presence of language in an employment manual asserting the employer's right to fire an employee at any time is even stronger evidence that the manual creates no guarantee for employees that they will be fired only for cause. See, e.g., Black, 999 F.2d at 1296.

In our view, the provisions of the city's employment manual that Mr. Thompson cites are no different, in kind or degree, from the provisions that this court and the Arkansas Supreme Court have held are insufficient to establish an employee's property interest for purposes of a due process claim under the fourteenth amendment. The provisions of the city's employment manual are thus inadequate to establish a...