United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 24, 2003
June 19, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
_________________
No. 02-10051
JILL MUNCY, ET AL.,
Plaintiffs,
v.
CITY OF DALLAS, TEXAS, ET AL.,
Defendants.
ROBERT JACKSON, Etc.; ET AL.,
Plaintiffs,
ROBERT JACKSON, Assistant Chief;
WILLIE TAYLOR,
Plaintiffs - Appellants -
Cross - Appellees,
v.
CITY OF DALLAS, TERRELL BOLTON,
Chief of Police, in his individual
and official capacities; TEODORO
BENAVIDES, City Manager, in his
individual and official capacities;
CHARLES DANIELS, Assistant City
Manager, in his individual and
Official capacities,
Defendants - Appellees -
Cross - Appellants.
Appeal from the United States District Court
for the Northern District of Texas, Dallas
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
BENAVIDES, Circuit Judge:
The controversy at bar stems from an employment dispute
between Plaintiffs-Appellants, Robert Jackson and Willie Taylor,
and the Dallas Police Department. Jackson and Taylor were removed
from command positions with the Dallas Police Department and
demoted to significantly lower ranks. They initiated this action
against Defendants-Appellees, the City of Dallas, Police Chief
Bolton, City Manager Benavides, and Assistant City Manager Daniels,
asserting, inter alia, 42 U.S.C. §1983 claims of substantive and
procedural due process deprivation, and state law claims for breach
of contract and wrongful termination. The district court entered
summary judgment against Jackson and Taylor with respect to all
claims on the grounds that they lacked a property interest in their
employment. We agree with the district court’s conclusion that
Jackson and Taylor lacked a property interest in their employment,
and consequently we herein affirm the district court’s grant of
summary judgment.
I.
The Underlying Employment Dispute
On October 1, 1999, Defendant-Appellee Terrell Bolton was
named Chief of Police of the Dallas Police Department (DPD) by
Defendant-Appellee City Manager Teodoro Benavides. Soon after
his appointment, Bolton endeavored to bring about a significant
reorganization of the command structure of the DPD. Among other
things, Bolton decided to make personnel changes at the highest
2
level of the DPD. Towards that end, on October 30, 1999, Bolton
"removed" nine department members from their command staff jobs.
Plaintiffs-Appellants Robert Jackson and Willie Taylor were among
those removed from their positions.
Jackson joined the police force in 1972. He steadily made
his way up through the department ranks, receiving promotions to
the positions of Deputy Chief of Police in 1988, then to
Assistant Chief of Police in 1990. In 1991, he was promoted to
the position of Executive Assistant Chief of Police, the second
highest command position in the DPD. It was from this position
that he was removed by Bolton in 1999. Those executives who were
removed in Bolton's reorganization were demoted to the highest
rank appointment they had held prior to being appointed to the
executive ranks. Consequently, Jackson was demoted to the rank
of Sergeant.
Taylor joined the DPD in 1971. In 1991 he was promoted to
Deputy Chief of Police. In August 1999, Taylor received an award
from the DPD for twenty years of perfect attendance. In October
of 1999, he was removed from his executive position by Bolton.
Taylor was demoted to the rank of Lieutenant.
Jackson and Taylor were manifestly dissatisfied with their
demotions. Jackson retired from the DPD rather than continue his
employment at the reduced rank. He eventually accepted a job as
Chief of Police for the City of Killeen, Texas. Taylor remained
with the DPD, but contacted City Manager Benavides requesting
3
both a written statement citing reasons for his demotion, and a
hearing to contest his demotion. On November 16, 1999, Benavides
responded by informing Taylor he had no right of appeal. Taylor
retired from the DPD on March 27, 2001.
On June 21, 2001, the City of Dallas (the City) contacted
Jackson and Taylor by letter informing them that they were
reinstated in the DPD, at their highest previously held executive
positions. They were advised to report for duty on August 15,
2001. However, both Jackson and Taylor have refused
reinstatement. They have not returned to their jobs, nor have
they accepted checks tendered by the City for back pay and
pension contributions. Instead, they have pursued this
litigation.
Jackson and Taylor initiated this action in the Northern
district of Texas, asserting substantive and procedural due
process violations as well as state law claims for breach of
contract and wrongful termination. The parties filed cross-
motions for summary judgment. The district court granted
Appellees’ motion for summary judgment on all counts, finding
that Jackson and Taylor lacked a property interest in their
executive positions with the DPD, and consequently they could not
prevail on their substantive or procedural due process claims,
nor could they prevail on their state claims. Jackson and Taylor
now appeal that finding.
4
II.
A. Property Interest
The primary question before this Court is whether, at the
time of their demotion, Jackson and Taylor were endowed with a
property interest in their continued employment at their
respective executive ranks with the DPD.1 Jackson and Taylor
assert that they enjoyed a protected property interest in their
executive rank positions with the DPD. We find, however, that
they did not.
It is well-settled that certain public employment situations
may endow an employee with a legally cognizable property
interest. Gilbert v. Homar, 520 U.S. 924 (1997)(observing that a
public employee who is dismissable only for cause has a property
interest in his continued tenure); Cleveland Bd. of Ed. v.
1
The Fourteenth Amendment to the Constitution prohibits the
deprivation of life, liberty or property unless the deprived
party has been afforded the benefit of those justice-safeguarding
processes which are due by law. U.S. Const. amend. XIV, § 1.
However, the Constitution only requires process in
circumstances in which the aggrieved party has been deprived of a
protected interest. Therefore, here, if Jackson and Taylor lacked
a property interest in their employment, then they cannot prevail
on their substantive or procedural due process claims, as the act
of removing Jackson and Taylor from their positions only
implicates those Constitutional guarantees if they first enjoyed
a legally cognizable property interest in their continued
employment. Moreover, Jackson and Taylor agree with the district
court that if their employment is determined to be at-will, then
summary judgment was appropriately entered against them with
respect to their state law claims. Consequently, the focus of our
inquiry here is fixed on the dispositive question of whether
Jackson and Taylor had a property interest in their jobs.
5
Loudermill, 470 U.S. 532 (1985). However, a property interest is
not incidental to public employment, instead it must be created
by an independent source, such as state law. Perry v. Sindermann,
408 U.S. 593, 601 (1972); Conner v. Lavaca Hosp. Dist. 267 F.3d
426 (5th Cir. 2001). In general, we have recognized that a
property interest is created where the public entity has acted to
confer, or alternatively, has created conditions which infer, the
existence of a property interest by abrogating its right to
terminate an employee without cause. This abrogation may take the
form of a statute, rule, handbook, or policy which limits the
condition under which the employment may be terminated, Henderson
v. Sotelo, 761 F.2d 1093, 1096 (5th Cir. 1985) (quoting Perry,
408 U.S. at 602-03, 92 S.Ct. at 2700); or it may take the form of
a more particularized mutual understanding with the employee.
Stapp v. Avoyelles Parish School Board, 545 F.2d 527 (5th
Cir.1977); Perry, 408 U.S. at 602. Ultimately, however, the
question of whether a property interest exists is an
individualized inquiry which is guided by the specific nature and
terms of the particular employment at issue, and informed by the
substantive parameters of the relevant state law.
In Texas, there exists a presumption that employment is
at-will unless that relationship has been expressly altered in
one of two ways. City of Midland v. O'Bryant, 18 S.W.3d 209, 215
(Tex. 2000). The at-will relationship may be altered by contract;
6
Conner, 267 F.3d at 426 (citing Loftis v. Town of Highland Park,
893 S.W.2d 154, 155(Tex.App.--Eastland 1995, no writ); or by
express rules or policies limiting the conditions under which an
employee may be terminated; Vida v. El Paso Employees' Federal
Credit Union, 885 S.W.2d 177, 182 (Tex.App. -- El Paso 1994, no
writ).
Here, there is no contract or similarly mutual understanding
with the City from which the putative property interest might
stem, and so the force of Jackson’s and Taylor’s arguments here
surround their allegations that the City’s official personnel
policies provided them with a property interest.2 Specifically,
Jackson and Taylor urge this Court to find that a property
interest in their executive rank employment emanated from a
myriad of sources, including several chapters of the City
Charter, City Personnel Rules, and City Human Resource documents.
We, however, find that none of the sources to which Jackson and
Taylor direct this Court vest in them a “legitimate right to
continued employment." McDonald v. City of Corinth, Tex., 102
2
While Jackson and Taylor do advance an argument implicating
a mutually explicit understanding with the City, that argument is
without merit. Jackson and Taylor suggest to this Court that a
property interest in their employment was created by oral
representations made by City Officials. They assert that City
Officials assured Jackson and others that they would not be
demoted except for cause. In assessing this contention, the
district court correctly interpreted Montgomery County Hospital
District v. Brown, which held that such assurances in and of
themselves do not create a property interest in the employee's
continued employment. 965 S.W.2d 501 (Tex. 1998).
7
F.3d 152, 154 (5th Cir.1996)(citing Perry v. Sindermann, 408 U.S.
593, 601-02(1972)).
1. Section 5
First, Jackson and Taylor argue that Chapter XII, Section 5
of the City Charter demonstrates that they were not at-will
employees. Section 5 states:
If the chief of the police department, or any
assistant above the rank and grade of
captain, was selected to that position from
the ranks of the police department and is
removed from the position on account of
unfitness for the discharge of the duties of
the position, and not for any cause
justifying dismissal from the service, the
chief or the assistant shall be restored to
the rank and grade held prior to appointment
to the position, or reduced to a lower
appointive rank.
Jackson and Taylor interpret this provision as mandating
that a chief-level officer may only be removed from his position
if he is “unfit” for the duties of the position, and Jackson and
Taylor would have us understand unfitness for duty as a quality
akin to the property interest-creating, for-cause condition on
employment termination.3
3
Jackson and Taylor rely on Richardson v. Felix, 856 F.2d
505 (3rd Cir. 1988), which is inapposite. In Richardson, the
Third Circuit found that a provision listing the procedures by
which an employee could be terminated for cause plainly meant
that employees could only be terminated for cause. Id. However,
there is no analogue here, as the provision cited by Jackson and
Taylor does not list procedures for terminating employees for
8
This interpretation, however, is not supported in the text
of Section 5. Section 5 outlines the conditions in which a
chief-level officer who is slated for demotion may be retained in
the department: only if the employee is removed for a reason
other than one that would be cause for dismissal, then will the
employee be demoted as opposed to discharged altogether. Thus the
provision contemplates that high level officials will be removed
from time to time, and in those instances in which the removal is
not for a cause that warrants dismissal, then the official will
be reassigned within the department.
However, the decision to remove the executive in the first
instance is not conditioned on good cause, or even on - as
Jackson and Taylor would have us understand it - an “unfitness
of duty”. Moreover, even if it were, the phrase “unfitness for
duty” describes a nebulous status which conceivably could
encompass political unsuitability or any number of other reasons
which fall short of the property interest-conferring,
termination-for-cause standard. Indeed, Section 5 allows that
the demoted employee will be retained only in those instances in
which the “unfitness for duty” does not rise to the level of
“cause warranting dismissal”. Thus the provision itself evidences
that executives may be replaced for reasons other than for-cause.
Therefore, Section 5 does not serve as a limit on the City's
cause.
9
ability to remove in the first instance, but rather it serves as
a limit on the City's ability to retain a former executive at his
previous rank.
2. Section 10
Jackson and Taylor next point to Chapter XVI, Section 10 of
the City Charter to support their contention that Jackson and
Taylor had a property interest in their continued employment.4
Section 10 describes the terms of the probationary period for new
employees. Section 10 states:
Appointments or promotions of city
officers and employees in the classified and
unclassified service shall not be deemed
complete until a period of six months shall
have elapsed. A probationer may be
discharged, suspended or reduced within said
period by the city manager, or the head of
the department in which said probationer is
employed without right of appeal.
Jackson and Taylor argue that this provision grants a
property interest by creating an implicit right of appeal upon
completion of the probationary period. However, while this
argument would appear to be supported in the text of Section 10,
the next section of the chapter, Section 11, outlines the
affirmative parameters of the right of appeal and expressly
4
Jackson and Taylor also assert that Chapter XVI, §16 of
the City Charter invests them with a property right. However,
this claim was not before the district court and consequently is
not properly before this Court.
10
limits the right to non-managerial employees. That section
provides in pertinent part:
Any classified or unclassified officer or
employee may be removed, laid off, or reduced
in grade by the city manager...after the six
month probationary period has expired.... The
discharged or reduced officer or employee
shall have the right to demand a public
hearing upon the charges.... This right of
appeal does not apply to department
directors, assistant department directors,
and other managerial personnel designated by
the city counsel.
Consequently, the district court correctly concluded that
because Jackson and Taylor were employed in managerial positions,
the Section 11 exception to the Section 10 right of appeal
applied to them.
Jackson and Taylor do not challenge the district court's
conclusion that they were employed in managerial level jobs.
Instead, they offer a novel theory concerning Section 10. They
contend that even if the right of appeal implicit in Section 10
has been withheld from employees like them in Section 11, that
exemption does not eviscerate the property interest itself.
Relying on cases which stand for the proposition that the
existence of a property interest does not depend on the creation
of procedures to remedy the deprivation of the interest, Jackson
and Taylor argue that their ability to access the right of appeal
does not inform the question of whether the existence of an
11
appeals process invests them with a property interest. See Arnett
v. Kennedy, 416 U.S. 134, 185 (1974). Specifically Jackson and
Taylor state that "[t]he exemption language contained in Section
11 speaks to the procedure of an appeal, not the underlying
property right which is set out...in Section 10." They then
conclude that once their respective probationary periods were
completed, their property interests vested pursuant to Section
10.
This abstract right of appeal argument, however, is steeped
in contorted reasoning. Jackson and Taylor are asserting that the
mere specter of a theoretical right of appeal which they are, in
actuality, expressly excluded from claiming, places a sufficient
limit on the conditions of their termination or demotion such as
could alter the at-will nature of their employment. This
conclusion is obviously inconsistent with the standard put forth
in Texas law which requires a general employment policy to be
specific and explicit before finding that an at-will employment
relationship has been altered. City of Midland, 18 S.W.3d at
215; Conner, 267 F.3d at 426. Additionally, it is sophistry to
suggest that the City is constrained in any meaningful way from
terminating Jackson and Taylor by a provision from which they are
expressly excluded. Therefore, Section 10 does not grant Jackson
and Taylor a property interest in their continued employment.
12
3. The Human Resources Documents
Jackson and Taylor next direct the Court to two personnel
documents authored by the City which Jackson and Taylor contend
confer a general property interest upon all City employees that
complete the probationary period. The first of these documents,
dubbed the “Policy Document”, states:
Property Rights: Upon completion of the
probationary period, an employee is said to
have a “property right” to their [sic]
position. This means that the City cannot
remove you from your position without due
process. Due process requires that an
employee be given specific notice of the
reason of termination or other disciplinary
action affecting the employee's property
right.
Jackson and Taylor point to this language and suggest that
the City has created a blanket property interest. However,
Jackson and Taylor overlook the relevant qualification contained
in a section of the Policy Document germanely entitled “Grievance
/ Disciplinary Appeal Process” and which unequivocally states:
Specifics [regarding the steps of the appeals
process] are noted in the City Personnel
Rules in Section 34-38, Grievance and Appeal
Procedures.
Rule 34-38 of the City Personnel Rules appears in the City
Personnel Rules under Article VI, which governs the “Discipline,
Grievance, and Appeal Procedures” for City employees. Rule 34-38
specifically addresses the “Grievance and Appeal Procedures” and
provides in relevant part:
13
(A) Applicability. This section applies
to every permanent city employee except:
(1) a department director,
assistant department director or other
managerial personnel designated by the city
council in accordance with Section 11,
Chapter XVI of the city charter.
Thus, the personnel rule which outlines the right of appeal for
City employees is unequivocally consistent with Section 11,
Chapter XVI of the City Charter in expressly excluding managerial
level employees such as Jackson and Taylor from the general right
of appeal. As the Policy Document incorporates Rule 34-38 by
reference, we find that in authoring the Policy Document, the
City consistently excluded managerial employees from the general
right of appeal, and consequently the Policy Document cannot
serve as a source for creating a property interest in managerial
level positions.
Similarly, Jackson and Taylor direct the Court to another
human resources document, dubbed the “Kress Document”, which also
outlines the City's official personnel policies regarding the
probationary period, and grievance and appeal processes. The
Kress Document states:
The Dallas City Charter creates a
property interest for employees who
satisfactorily serve a probationary period.
Having attained a property interest an
employee is entitled to certain procedural
protections before his employment may be
terminated or seriously impacted.
However, the Kress Document, too, incorporates Rule 34-38 by
14
reference in describing the appeal procedures.5 Therefore we find
that the Kress Document is also consistent with the bi-level
approach adopted by Section 11 of the City Charter which excludes
managerial employees from the right of appeal.
In sum, we find nothing in the sources presented us which
vested Jackson and Taylor with a legitimate right to continued
employment. Indeed we instead find that in each of the documents
before this Court, the City has laudably balanced its obligation
to inform its non-executive rank employees of their due process
rights, while carefully and quite appropriately retaining the
City’s right to remove, without impediment, high-ranking
officers. It is both proper and desirable that the City should
preserve its ability to act as a political body and reorder its
municipal leadership when the public welfare so requires, and the
City certainly does not forfeit that right by extending a
property interest to its non-executive employees.
Therefore, as the City did not act to confer a property
interest to their executive-rank employees, we conclude that
Jackson and Taylor were, at the time of their demotion, employees
5
The same analysis applies to Jackson’s and Taylor’s claim
of property interest pursuant to the City Personnel Rules. While
Jackson and Taylor direct the Court to Rule 34-11 which outlines
a probationary period for new employees and newly promoted
employees, and to Rule 34-12 which describes a grievance and
appeal process for employees who have served beyond their
probationary term, Rule 34-38 nevertheless expressly exempts, "a
department director, assistant department director, or other
managerial personnel” for the right of appeal described in Rules
34-11 and 34-12.
15
at-will, and the City was free to discharge them without cause.6
B. Motion to Bar
Appellees, the City, Bolton, Benavides, and Daniels assert a
single-issue cross-appeal. Appellees contest the district court's
ruling on Jackson’s and Taylor’s motion to bar certain attorneys
in the City Attorney office from working on the instant case. In
ruling on this motion the district court held that attorneys
Moss, Plaster, McClain, and Morales (hereafter the CAO
Attorneys), who were previously permitted to withdraw as counsel
of record on the basis that they might be called as witnesses in
the case, were likewise barred from participation in the case.
A motion to bar under these circumstances is akin to a
motion to disqualify, and as such, this Court reviews the
district court’s determination to bar under an “overall abuse of
discretion” standard, in which we review the findings of fact for
clear error, and the application of the rules of ethical conduct
de novo. FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1311
6
The district court also determined that neither the Policy
Document nor the Kress Document created a property interest in
Jackson's and Taylor's employment because they did not present
evidence that they received or relied on the document. However,
Jackson’s and Taylor’s reliance on the documents is not relevant
to the analysis as to whether the City volitionally created a
property interest in its employment through the crafting of its
personnel policies.
16
(5th Cir.1995); Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d
261(5th Cir. 2001).
However, the motion at bar deviates from the usual motion to
disqualify in one significant respect. Here, the attorneys who
were barred from participation in the case had previously
requested that the district court allow them to withdraw as
counsel of record. The CAO Attorneys asked the court to be
permitted to withdraw because, “some of the attorneys currently
representing the Defendants may be called as witnesses in the
case.” The Court granted the motion to withdraw, but the
Plaintiffs later moved to bar the very same attorneys who had
withdrawn. The motion to bar alleged that the withdrawn attorneys
were continuing to participate in the case. It is clear from the
record that the district court construed the CAO Attorneys’
motion to withdraw as a motion to withdraw from both presentation
and participation in the case, and consequently when presented
with Jackson’s and Taylor’s motion to bar the CAO Attorneys from
participation in the case, the district court stated:
Plaintiffs have moved to bar based upon
the Court’s earlier order [permitting the
withdraw of the CAO Attorneys]. Plaintiffs
have not brought a motion to disqualify....
Because some of the attorneys who
specifically withdrew from representation
have continued to provide legal advice to
Defendants, the Plaintiffs’ motion is granted
in part.
Thus, the district court understood its ruling on the motion to
17
bar to be an enforcement of its early ruling withdrawing the CAO
Attorneys. Our analysis here is distinguished from that which
would be applicable in the context of a motion to disqualify.
Were this an instance in which the district court disqualified a
party’s counsel of choice, ethical rules of conduct would govern
the court’s discretion to limit a party’s right to the counsel of
his choice. Here, however, the party in question moved the court
to withdraw his counsel, and therefore no finding of
disqualification was required for the attorney to be removed from
the case. We note further that although it might have, the motion
to withdraw fails to specify that the CAO Attorneys wished to be
withdrawn from representation, but not from participation, in the
case. Instead, the motion indicates only that the CAO Attorneys
would be withdrawn as counsel of record. Moreover, it is not a
clearly erroneous conclusion to surmise that attorneys who have
been voluntarily withdrawn as counsel of record from a case are
similarly withdrawn altogether from the case.
While both Appellees and Appellants point to rules which
they deem to be controlling as to which attorneys could be barred
by the district court and to what degree, both parties
misapprehend the scope of a district court’s discretion under the
particular circumstances at bar. Appellees argue that the
district court erred in barring the CAO Attorneys from
participation in the case because Rule 3.08(a) of the Texas
Disciplinary Rules of Professional Conduct provides that
18
attorneys who may be called to testify are barred from
representation before the Court, but not from participation in
the case. Appellees conclude that the district court confused the
standard put forth in Rule 3.08 -- which bars only
representation, and only by the attorney who might be called to
testify -- with the concept of attorney disqualification, which
potentially calls for the disqualified attorney to abstain from
both representation and participation in a given case.
However, in asserting that the district court misapplied
Rule 3.08(a) of the Texas Disciplinary Rules of Professional
Conduct, Appellees are in error. Indeed, the district court did
not apply Rule 3.08(a) at all, but instead expressly stated it
found that the rule did not apply because there was no motion for
disqualification pending. More importantly, Rule 3.08(a) governs
the conduct of Texas attorneys, not the conditions under which a
district court may bar participation by an attorney. Therefore
the district court was not bound by Rule 3.08(a)in determining
the degree to which attorneys who were withdrawn as counsel of
record from the case could be involved in the case thereafter.
Apparently proceeding under the notion that the best
defense is a good offense, Jackson and Taylor suggest that the
district court did not go far enough, i.e., that the district
court should have banned the entire City Attorney’s Office as
their motion requested. Pointing to Rule 83.15 of the Local Rules
of the U.S. District Court for the Northern District of Texas,
19
Jackson and Taylor argue that the entire City Attorney Office was
disqualified from both participation and representation in the
case. That rule provides in pertinent part that:
An attorney must not accept employment in a
contemplated or pending case if the attorney
knows...that the attorney or another attorney
in the firm may be called as a witness on
behalf of the client....If, after accepting
employment in a case, an attorney learns...
that the attorney or another attorney in the
firm may be called as a witness on behalf of
the client, the attorney and the firm must
withdraw from the case.
L.R.83.15(a),(c) of N.D.Tex. (emphasis added). However, Rule
83.15 is inapplicable here. Under the heading, "Acceptance of
Employment" the rule details the circumstances in which an
attorney should decline to "accept employment...in a case." The
rule stipulates that when an attorney knows that he or someone in
his firm may be called to testify in a given action, that
attorney must decline to accept employment in the case. The
policy supporting this rule is evident, and implicates conflict
of interest concerns for the attorney acting as both an employee
of a party to the suit, and a witness -- concerns which are
simply not relevant when applied to the City Attorney Office or
other government agency.
Therefore, the district court did not err in ruling as it
did on the motion to bar. The district court did not rely on
either rule cited by the parties as controlling, and indeed
20
neither rule cited by the parties is controlling. Instead the
district court determined, in its discretion, to bar from
participation those attorneys who had already been withdrawn as
attorneys of record in the case. This determination does not
constitute an abuse of discretion and consequently we will not
disturb it.
III.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
21
Muncy v. City of Dallas TX
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-06-24
Citations: 335 F.3d 394
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