Bolton v. City of Dallas TX

United States Court of Appeals Fifth Circuit F I L E D In the December 7, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 05-11141 _______________ TERRELL BOLTON, Plaintiff-Appellant, VERSUS THE CITY OF DALLAS, TEXAS, AND TEODORO BENAVIDES, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, Defendants-Appellees. _________________________ Appeal from the United States District Court for the Northern District of Texas m 3:04-CV-0501-K ______________________________ Before SMITH, BENAVIDES, and PRADO, in favor of the defendants, the City of Dallas Circuit Judges. and its city manager, Teodoro Benavides. Bolton sued under 42 U.S.C. § 1983, alleging JERRY E. SMITH, Circuit Judge: that the city had terminated him from his po- sition as Chief of Police in violation of the due Terrell Bolton appeals a summaryjudgment process clause of the Fourteenth Amendment. The district court concluded that Bolton show that (1) he had a property interest/right lacked a constitutionally-protected property in his employment and (2) his termination was interest in further employment with the Dallas arbitrary or capricious. Moulton v. City of Police Department (“DPD”). Because Chapter Beaumont, 991 F.2d 227, 230 (5th Cir. 1993) XII, § 5 of the Dallas City Charter creates a (citing Honore v. Douglas, 833 F.2d 565, 568 constitutionally-protected property interest, (5th Cir. 1987)). Because the district court we reverse and remand. We also conclude granted summary judgment based on its find- that Benavides’s successful defense of ing that Bolton lacked a property interest in his qualified immunity requires dismissal of Bol- employment, we address only the first prong. ton’s claims against Benavides in his individual capacity. Although public employees can be endowed with constitutionally-protected property I. interests in their employment,1 a property Bolton served as an executive-rank officer interest is not incidental to public employment of DPD for fifteen years and in August 1999 and must be located in an independent source, was promoted from assistant chief to chief. In such as state law. Perry v. Sinderman, 408 August 2003 city manager Ted Benavides ter- U.S. 593, 601 (1972). “A property interest is minated his employment. Benavides ac- created where the public entity has acted to knowledges that the dismissal was not for confer, or alternatively, has created conditions cause. Bolton claims the city charter mandates that infer [sic, imply?], the existence of a prop- that he be restored to the rank and grade he erty interest by abrogating the right to held before being appointed chief. terminate an employee without cause.” Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir. II. 2003). A public entity can confer a property We review a summary judgment de novo, interest in public employment through a local applying the same standard as did the district ordinance. Bishop v. Wood, 426 U.S. 341, court. Morris v. Powell, 449 F.3d 682, 684 344 (1976).2 (5th Cir. 2005), cert. denied, 2006 U.S. LEX- IS 8734 (U.S. Nov. 13, 2006). All justifiable inferences to be drawn from the underlying 1 Gilbert v. Homar, 520 U.S. 924, 928-29 facts must be viewed in the light most favor- (1997) (stating that “employees who can be dis- able to the nonmoving party. Minter v. Great charged only for cause have a constitutionally pro- Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. tected property interest in their tenure and cannot 2005). Summary judgment is appropriate be fired without due process”); Cleveland Bd. of where the record demonstrates that there is no Educ. v. Loudermill, 470 U.S. 532 (1985). issue of material fact and the moving party is 2 Under Texas law, home rule cities “may de- entitled to judgment as a matter of law. Mar- termine by charter whether employment in certain tinez v. Bally’s La., Inc., 244 F.3d 474, 476 city offices is at will or continuous absent just (5th Cir. 2001). cause for dismissal, and Texas courts will give ef- fect to such charter provisions.” Henderson v. So- III. telo, 761 F.2d 1093, 1096 (5th Cir. 1985) (citing To succeed on a due process claim in the Ratliff v. City of Wichita Falls, 115 S.W.2d 1153 context of public employment, a plaintiff must (Tex. Civ. App.SSAmarillo 1938, writ dism’d), (continued...) 2 removed from time to time, and in those in- Bolton claims that Chapter XII, § 5 of the stances in which the removal is not for a cause charter grants him a property interest in con- warranting dismissal, then the official will be tinued employment. It states, reassigned within the department.” Id. If the chief of the police department . . . Although the city points to language in was selected to that position from the ranks Muncy indicating that § 5 serves primarily as a of the police department and is removed limit on the city’s ability to retain former ex- from the position on account of unfitness ecutives, id. at 399-400, it is evident that Mun- for the discharge of the duties of the posi- cy does not control the instant case. Unlike tion, and not for any cause justifying dis- the plaintiffs in Muncy, Bolton claims a prop- missal from the service, the chief . . . shall erty interest not in his executive-rank position, be restored to the rank and grade held prior but rather in continued employment at the rank to appointment to the position, or reduced and grade held before his appointment to the to a lower appointative rank. executive position. His argument does not rely on the “unfitness for duty” language, but DALLAS, TEX., CITY CHARTER ch. 12, § 5 rather on the “for any cause justifying dis- (2006). missal” language. He asserts that § 5, by its reference to “any cause justifying dismissal We examined this section in Muncy, 335 from the service,” creates a property interest in F.3d 394. In that case, two executive-rank continued employment. DPD officers challenged demotions to the highest-rank appointments they had held be- The plain language of the charter supports fore receiving their executive appointments. Bolton’s reading. “If the chief . . . is removed They contended that a myriad of sources, in- . . . not for any cause justifying dismissal from cluding § 5, granted them a protected property the service,” tracks language that elsewhere interest in their executive-rank positions. In has been found to create a property interest.3 examining § 5, we noted that “unfitness for The word “shall” implies that restoration to a duty” is “a nebulous status which conceivably could encompass political unsuitability or any 3 number of other reasons that fall short of the See Perry, 408 U.S. at 600-03 (holding that property-interest conferring, termination-for- guidelines stating that an employee “may expect to cause standard.” Id. at 399. We found this continue in his academic position unless adequate particularly true given that the statute internal- cause for dismissal is demonstrated in a fair ly defines “unfitness for duty” as “not for any hearing” create a protected property interest); Ai- cause justifying dismissal.” Id. Interpreting ello v. United Air Lines, Inc., 818 F.2d 1196, 1199 (5th Cir. 1987) (finding a protected property inter- the provision as a whole, we noted that it est where an employee handbook “contained a pro- “contemplates that high level officials will be vision that employees would be discharged only for good cause”); United Transp. Union v. Brown, 694 S.W.2d 630 (Tex. App.SSTexarkana 1985, 2 (...continued) writ ref’d n.r.e.) (finding a protected property and City of San Benito v. Cervantes, 595 S.W.2d interest where “the manual of working conditions 917 (Tex. Civ. App.SSEastland 1980, writ ref'd provides that no employee will be demoted without n.r.e.)). good cause”). 3 lower rank and grade is mandatory.4 IV. Benavides asserts in the alternative that any Even if we were to look beyond the plain claims against him in his personal capacity language, this interpretation makes sense. The should be dismissed because he is entitled to chief of police is a political position, and a qualified immunity. Although the district court chief might be removed for any number of did not address the qualified immunity claim, reasons beyond his control. Through this Benavides asserted the defense in his answer charter provision, Dallas is ensuring officers and raised it in this appeal, so we may address with considerable length of service that ac- it. cepting an unstable job will not force them to forfeit their long tenure within the DPD. It re- Once a public official has raised the defense flects a balance between the cty’s interest in of qualified immunity, the burden rests on the attracting high quality applicants and its inter- plaintiff to rebut it.6 On a motion for summary est in ensuring effective oversight of the of- judgment, the disputed facts to which the ficers who fill executive positions. plaintiff points must be sufficient, if plaintiff’s version is accepted, for a reasonable trier of The city responds by claiming that the two fact to determine (1) that the defendant grounds for removal in the charterSS“unfitness violated the plaintiff’s constitutional rights and for duty” and “for cause justifying dismis- (2) that the violation was objectively sal”SS do not exhaust the field of possible rea- unreasonable. See Fraire v. City of Arlington, sons for removal of an executive officer. 957 F.2d 1268, 1273 (5th Cir. 1992). The Although admitting that Bolton was not re- inquiry into reasonableness asks “whether moved for cause, the city alleges that he was ‘[t]he contours of the right [are] sufficiently discharged because his continued presence clear that a reasonable official would under- would be “disruptive” rather than because he stand that what he is doing violates the right.’” was unfit for duty, a reason for removal that Id. (citing Anderson v. Creighton, 483 U.S. would not trigger § 5. We do not ascribe the same talismanic significance to “unfitness for duty.” The language that creates a property 5 (...continued) interest is “not for any cause justifying dismis- under § 1983 because Bolton has not pointed to a sal.” If a chief promoted from within the ranks policy or custom that violates his rights. Because is not removed for cause, by the plain language the district court concluded that Bolton did not pos- of the charter he must be restored to his sess a protected property right, it did not address previous position.5 the factual disputes raised by the city or whether the city’s policy or custom played a role in the violation of Bolton’s rights. We leave these argu- ments for the district court on remand. See San- 4 See, e.g., Valdez v. Cockrell, 274 F.3d 941, ders v. English, 950 F.2d 1152, 1159 n.13 (5th 950 (“The word ‘shall’ is mandatory in meaning.”). Cir. 1992). 5 6 The City raises alternative grounds for affirm- See Pierce v. Smith, 117 F.3d 866, 871-72 ance: that § 5 does not apply to Bolton, because he (5th Cir. 1997) (“We do not require that an official was not selected chief from “the ranks of the demonstrate that he did not violate clearly es- department” and that the city is immune from suit tablished federal rights; our precedent places that (continued...) burden upon plaintiffs.”). 4 635, 640 (1987)). If reasonable public officials could differ as to whether the defendant’s actions were lawful, the defendant is entitled to immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986). Although we now conclude that § 5 of the Dallas City Charter creates a vested property right in employment at a former rank for exec- utive-level officials, this decision is not appar- ent from Muncy. There we were considering a due process claim in the context of demo- tion, but we stated that executive rank officials are “employees at will, and the city was free to discharge them without cause.” Muncy, 335 F.3d at 402. If we are to respect the principle underlying qualified immunity to the effect that officials must be able reasonably to “anticipate when their conduct may give rise to damages,” we cannot hold an official liable for taking ac- tion that was arguably supported by decisions of this court. See Davis v. Scherer, 468 U.S. 183, 195-96 (1984). Bolton’s claim against Benavides in his personal capacity must be dismissed based on qualified immunity, because reasonable public officials could have differed on whether discharging Bolton would violate his constitutional rights. In summary, because the charter creates for Bolton a constitutionally protected property interest in further employment, the judgment is REVERSED. Bolton’s claims against Benavides in his individual capacity are DISMISSED based on qualified immunity. The remaining claims are REMANDED for further proceedings not inconsistent with this opinion. 5