Opinion
Civil Action No. 3:00-CV-2126-D
March 11, 2002
MEMORANDUM OPINION AND ORDER
An employee of a public health system who was terminated after another employee claimed that he had sexually harassed her brings this action alleging violations of his right to due process and his liberty interest in a name-clearing hearing. Concluding that the employee has not shown that he had a property in interest in his position or that his employer made public the circumstances of his termination, the court grants summary judgment in defendant's favor.
I
Plaintiff James D. Dethrow ("Dethrow") sues defendant Parkland Health Hospital System ("Parkland") contending that Parkland violated his procedural due process rights under the Fifth and Fourteenth Amendments when it terminated his employment on the ground that he had sexually harassed a female employee, and then deprived him of his Fourteenth Amendment liberty interest by denying him an opportunity to clear his name. Parkland hired Dethrow in 1995 as a Financial Control Manager II. In 1999, after Dethrow's direct and intermediate supervisors resigned, Mark Teresi ("Teresi"), Parkiand's Senior Vice President and Chief Financial Officer, held the most direct supervisory relationship with Dethrow.
Parkland employee Christina May ("May") declined a promotion to a position that worked directly with Dethrow, stating that she did not desire to work with him because he had made inappropriate sexual remarks. Dethrow did not deny making the comments, but he claimed they were made in fun, without improper motive. May submitted a written complaint that described the comments. In response, Teresi met with Dethrow, described May's assertions, and gave him an opportunity to rebut them. Dethrow did not deny making the comments to May, but he claimed he did not intend them to be sexual. The following day, Teresi decided to terminate Dethrow's employment. After reviewing the matter with the appropriate Parkland department, and obtaining its approval, he discharged Dethrow. Dethrow appealed the termination through Parkland's four-step grievance process, but the termination was upheld.
Parkland moves for summary judgment, contending inter alia that Dethrow's deprivation of liberty claim fails because he cannot adduce evidence of publication of the circumstances of his termination, and that his due process property claim must be dismissed because he was an at-will employee who had no protectable property interest in continued employment. Dethrow opposes the motion.
In his opposition brief, Dethrow objects to some of the evidence on which Parkland relies. See P. Br. at 2-4. The court either has not relied on the evidence to which he objects or has relied on evidence to which an invalid objection has been presented. The objections are therefore overruled on the merits or as moot.
II
Parkland contends it is entitled to summary judgment dismissing Dethrow' s deprivation of liberty claim because inter alia Parkland never made public the circumstance of his termination.To establish a violation of his right to a name-clearing hearing, a plaintiff must prove inter alia "that the charges were made public[.]" Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000). When, as here, the summary judgment movant will not have the burden at trial concerning a cause of action, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once it does so, the nonmovant must then go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Moreover, he must produce evidence to establish the existence of each element for which he bears the burden of proof. See Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991). Here, because Parkland has pointed to the lack of evidence of publication, Dethrow must produce evidence that would permit a reasonable trier of fact to find publication in his favor. Summary judgment is mandatory if he fails to meet this burden. Little, 37 F.3d at 1076. Dethrow's failure to adduce proof on this single essential element renders all other facts immaterial. Celotex Corp., 477 U.S. at 323. Dethrow must cite the evidence that would permit a finding in his favor. This court is not required to "comb the record" in search of a genuine issue of material fact. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)). "Rule 56, therefore, saddles the non-movant with the duty to `designate' the specific facts in the record that create genuine issues precluding summary judgment, and does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant's opposition." Jones, 82 F.3d at 1338.
Parkland has pointed to the absence of evidence that the charge against Dethrow was made public. In his response and declaration, Dethrow maintains that the charges were made public in two ways: (1) during the investigation, the sexual harassment allegations were made available to employees who should have had no part in the investigation process, including Brad Ross ("Ross"), a manager in building services, see P. App. 100070, and (2) after his termination, he was required during numerous job interviews to inform prospective employers that he had been terminated for sexual harassment, id. Dethrow contends "[t]hese circumstances should meet the requirement for a liberty interest claim that the charges be made public[,]" or at least should present a genuine issue of material fact that requires a trial. See P. Br. at 9.
Dethrow's contentions fail for two reasons. First, he acknowledges in his affidavit that he disclosed his termination when seeking employment. See P. App. 100070 ("After Dethrow was terminated, in numerous job interviews when asked why he was terminated by defendant, he had to make the allegations of sexual harassment or the fact that he was terminated for sexual harassment known to prospective employers."). Although the circuits are split on the question of self-publication, in the Fifth Circuit compelled self-publication to prospective employers is insufficient to satisfy the publication element. See Hughes, 204 F.3d at 228.
Second, Dethrow's assertion in his declaration that "the specifics of the sexual harassment allegations against [him] were made available to employees, who should have had no part in the investigation process," see P. App. 100070, is too general and conclusory to permit a reasonable trier of fact to find that the charges against him were made public by the act of a Parkland employee. Apart from Ross, Dethrow does not specifically identify any person who knew about the allegations or the nature of what was said. And he does not show how individuals who "should have had no part in the investigation process" — including Ross — learned of the information about him. This evidence is therefore inadequate to establish publication by Parkland. See Hughes, 204 F.3d at 227 (holding that "[t]his Court's authority conclusively establishes that public disclosure must be fairly attributable to the defendant employer."); Arrington v. County of Dallas, 970 F.2d 1441, 1447 n. 4 (5th Cir. 1992) (holding that plaintiff failed to present sufficient proof that publication was voluntary act of defendant official). As noted, this court is not obligated to conduct an independent search of the summary judgment record looking for evidence that would support the publication element of Dethrow's liberty interest claim.
Parkland is therefore entitled to summary judgment dismissing this cause of action because Dethrow has not introduced evidence that would permit a reasonable trier of fact to find publication.
III
Parkland maintains that Dethrow's due process claim fails as a matter of law because inter alia Dethrow was an at-will employee who had no protectable property interest in continued employment.
A
When a person has a property right in continued employment, that right may not be deprived without due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). The Constitution, however, does not create property interests. "Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law[.]" Bd of Regents v. Roth, 408 U.S. 564, 577 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. A property interest can arise from such interests as a mutually explicit understanding or an express contract. See Perry v. Sindermann, 408 U.S. 593, 601 (1972). This court determines whether Dethrow had a protected property interest by reference state law. Bishop v. Wood, 426 U.S. 341, 344 (1976).
In connection with Dethrow's receipt of the Parkland Hospital Employee Handbook on which he relies, Dethrow signed an acknowledgment card that stated, in relevant part, as follows
I also understand that receipt of this handbook and policies/procedures contained herein do not in anyway constitute, and should not be construed as a contract between employer and employee for permanent employment.
D. App. 37. On his employment application, Dethrow acknowledged, in relevant part:
Further, I understand that this application does not in any way constitute, and should not be construed as, a contract between employer and employee for permanent employment.Id. at 42. The Parkland Human Resources Policy Manual states, it pertinent part:
The following policies are designed to be fair, equitable as well as employee-centered and employee-valued. These policies are intended to be in line with good business and management practices. They are not intended to constitute a contract between Dallas County Hospital District and any DCHD employee.Id. at 36.
B
Dethrow maintains that he had a property right in his employment by virtue of the Parkland Policy Manual and Employment Handbook and Parkland's Ethics Policy, all of which granted him due process rights. He argues that, as in Aiello v. United Air Lines, Inc., 818 F.2d 1196 (5th Cir. 1987), an employee manual that contains specific disciplinary procedures and an employer obligation to discharge only for just cause can constitute an express contract that places on the employer the obligation to follow its promises concerning discharge and discipline, despite an introductory statement that the regulations or policies are not intended to be a contract or to alter employment at will. Dethrow posits that Parkland's Policy Manual, Employment Handbook, and Ethics Policy treat the procedures as binding, that Parkland purported to follow the procedures in his case, and that Parkland and Teresi treated them as binding.
Citing Vida v. El Paso Employees' Federal Credit Union, 885 S.W.2d 177 (Tex.App. 1994, no writ), he argues that when an employer's handbook specifically and expressly curtails the employer's right to terminate the employee, it may modify the at-will relationship. Dethrow contends that in Vida the court held that the handbook provision that no employee would be penalized for using the grievance procedure limited the employer's termination rights. He contends that Parkiand's Problem Solving Procedure prohibits retaliation for using the procedure, and that the Policy Manual also states concerning executive staff and department directors that the procedure is established to protect each individual's rights as an employee of Parkland, and that due process rights of the employee will be provided.
Dethrow relies on Burwell v. Matagorda Hospital District, 1997 Tex. App. LEXIS 6136 (Tex.App. 1997) (unpublished opinion), for the proposition that, when an employer's personnel manual states both that employment is at-will but refers to termination with cause, the language is ambiguous and conflicting and creates a question of fact for the jury concerning the employer's intent. He contends the Parkland Policy Manual contains numerous references to termination for cause, or adequate cause, which create a fact question whether Parkland was affirming the at-will doctrine or expressly modifying it.
C
Dethrow essentially relies on two premises to argue that he had a property right in his employment that modified the at-will relationship: Parkland provided a grievance procedure, and Parkland employment materials referred to termination for cause.
Although Dethrow does not expressly contend, and thus has waived the argument, that once an employer gratuitously accords due process rights to an employee who lacks a property interest sufficient to require them, it must not violate due process in doing so, this argument would appear to lack merit under Texas law. As the Texas Court of Appeals explained in Alford v. City of Dallas, 738 S.W.2d 312 (Tex.App. 1987, no writ), "[a] state agency's failure to follow its own procedural rules governing employment will not create a property interest that otherwise does not exist." Id. at 316. "An individual does not have a property interest in the rules themselves or in his or her state employer's observance of the rules. Rather, a property interest protected by procedural due process arises where an individual has a legitimate claim of entitlement that is created, supported, or secured by rules or mutually explicit understandings." Id. (emphasis in original). "[T]he plaintiff must establish a protectable property interest separate and apart from the rules themselves." Id.
The court first considers his reliance on the grievance procedure and his citation to Vida. Under Texas law, "[t]he existence of a procedure for employee complaints has been held not to alter the at-will nature of employment." Haynes v. City of Beaumont, 35 S.W.3d 166, 179 (Tex.App. 2000, no pet.). ""Hearings and grievance procedures may be granted for reasons other than protection against deprivation of a substantive right; such procedures do not create a property interest in the employee's job." Byars v. Cay of Austin, 910 S.W.2d 520, 524 (Tex.App. 1995, writ denied). In Haynes, because the municipal employer established that its manual explicitly stated in its introduction that the policies did not create a contract or limit the city's power to terminate an employee in any way, and the existence of the grievance procedure alone did not create substantive property rights or alter the employee's at-will status, the city was entitled to summary judgment holding that the employee had no property right entitling her to more procedural due process than she received. Haynes, 35 S.W.3d at 179-80. See also Byars, 910 S.W.2d at 524. Accordingly, Dethrow cannot rely on the fact that Parkland provided a grievance procedure to assert a property interest in his employment.
Dethrow's reliance on Vida is also misplaced because, at most, it would restrict Parkiand's ability to fire him in retaliation for using the grievance procedure. See Vida, 885 S.W.2d at 181; Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847, 862 (5th Cir. 1999) (interpreting Vida to hold that the employer's "policy narrowly and explicitly restricted the employer's right to terminate an employee for using the grievance procedure"). "[T]he at-will doctrine still governed the relationship between plaintiff and defendant in most areas[.]" Zenor, 176 F.3d at 862 (quoting Vida, 885 S.W.2d at 181). Dethrow does not allege that Parkland discharged him for using the grievance procedure. In fact, the procedure was not invoked until after the decision to terminate his employment. Moreover, as the Fifth Circuit pointed out in Zenor, the policy manual in Vida did not contain a disclaimer of contractual rights. Id. at 863. The relevant documents in this case all disclaim any such intent.
D
The court turns next to Dethrow's reliance on references to termination for cause to establish a property right. Dethrow cites two excerpts from Parkland's Human Resource Procedure Manual to argue that he had a property right in his employment that modified an at-will relationship. The first states: "All terminations for cause must be reviewed by the Department Director and Director, Human Resource Relations or designee prior to presenting to the employee." P. App. 100015. The second states that "[t]he following are some examples of misconduct that would be adequate cause for immediate termination. . . . (This list is not intended to be all inclusive.)," after which the Procedure Manual lists 22 examples. Id. at 100015-100018.
"Texas law imposes a strong presumption in favor of at-will employment." Zenor, 176 F.3d at 862 (citing Montgomery County Hospital District v. Brown, 965 S.W.2d 501 (Tex. 1998)). In limited circumstances, employment policies may alter the at-will nature of the employment relationship and create enforceable contractual rights. Id. But to do so, "the policy must specifically and expressly limit the employer's ability to terminate the employee." Id. "The policy must contain an explicit contractual term altering the at-will relationship, and must alter that relationship `in a meaningful and special way.'" Id. (quoting Figueroa v. West, 902 S.W.2d 701, 705 (Tex.App. 1995, no writ)). In fact, "Texas courts have been reluctant to imply contractual rights from non-explicit statements or employment policies." Id. A disclaimer in an employee handbook supports the presumption that the employer did not intend for its policies to create contractual rights. See Zenor, 176 F.3d at 863. In Figueroa the court held:
In numerous cases, discharged employees have attempted to recover for breach of contract by alleging that their employers' personnel manuals contained enforceable promises altering the at-will relationship. Texas courts have generally rejected this theory, particularly where a specific disclaimer in the employee handbook warns the employee that the manual is intended to provide guidelines only and does not create contractual rights. Appellee's handbook contains several such provisions, which we outline above. We therefore conclude that the disclaimer cases control the instant case.Id. at 704-05 (citations omitted).
The excerpts on which Dethrow relies do not specifically and expressly limit Parkiand's ability to terminate him in the "clear, definite language" that is necessary to modify the at-will employment relationship "in a meaningful and special way." See Welch v. Doss Aviation, Inc., 978 S.W.2d 215, 221 (Tex App. 1998, no pet.). The reference to a requirement that all terminations for cause be reviewed by the Department Director and Human Resource Relations Director or designee does not specifically and expressly provide that an employee can only be terminated for cause. See id. And the Human Resource Procedure Manual does not contain clear, definite language restricting Parkland's right of termination in a meaningful and special way. The listing of examples of misconduct that would be adequate cause for immediate termination does not "expressly limit [Parkland's] right to fire employees to the list of infractions provided." Id. "[T]he language is general, providing `examples' of violations[.]" Id.
Fairly interpreted, the Human Resource Procedure Manual says this: Parkland follows a progressive discipline procedure — specified in the Manual — for many employment performance shortcomings. Some conduct, however, is so serious that it is adequate cause for immediate termination. A nonexclusive list of 22 examples of such conduct is given. If a decisionmaker contemplates that a subordinate is to be terminated for cause, the decision must be reviewed by the Department Director and Human Resource Relations Director or designee before the employee is advised. The Human Resource Procedure Manual does not provide that employment can only be terminated for cause; in fact, if Parkland policies explicitly state anything in clear and definite terms, it is that they do not create permanent employment.
* * *
Accordingly, the court grants Parkland's December 27, 2001 motion for summary judgment and dismisses this action with prejudice by judgment filed today.
SO ORDERED.