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.
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