Opinion
CIVIL ACTION NO. 3:99-CV-2249-G.
July 16, 2001.
MEMORANDUM ORDER
Before the court is the motion of the plaintiff Willard R. Rollins ("Rollins") for reconsideration of the court's order, entered on March 8, 2001, vacating sua sponte its memorandum order of August 18, 2000. For the reasons stated below, the motion is granted.
Background
On August 18, 2000, this court issued a memorandum order ("the August 18 memorandum order") partially granting and partially denying summary judgment to each of the parties. One of the determinations made in the August 18 memorandum order was that, under Texas law, Rollins had a property right in his previous position as Executive Assistant Chief of the Dallas Police Department, thus entitling him to due process protections before he could be demoted. See August 18 Memorandum Order at 9-15. On motion for reconsideration of the August 18 memorandum order by the defendant City of Dallas ("the City"), and after full briefing by the parties, the court denied the motion for reconsideration, observing that "[a]lthough the issue is not free from doubt, the court is not persuaded that its earlier analysis was in error." Memorandum Order (December 4, 2000) at 4.
On further reflection, however, the court became concerned that it had incorrectly decided this close question of state law, on which there was virtually no controlling precedent. Accordingly, on March 8, 2001, it sua sponte vacated the August 18 memorandum order. Rollins now moves for reconsideration of the March 8 order.
Discussion
While this motion was pending, the City produced to Rollins on June 4, 2001 its Second Supplemental Responses to Initial Disclosures. This response contained an excerpt from a document, apparently maintained by the City's Human Resources Department, which states in relevant part:
Upon Successful Completion of Probation. Employees are Entitled To:
Property Rights: Upon completion of the probationary period, an employee is said to have a "property right" to their position. This means that the City can not remove you from your position without due process.
The court called for briefing from the parties on the significance of this document, Order (June 12, 2001), and that briefing is now complete. Rollins contends that this document is an admission by the City that he had a property interest in his position as Executive Assistant Chief. See letter to the court from Steven K. DeWolf, Esq. dated June 5, 2001. The City contends that this document does not apply to Rollins or his former position as Executive Assistant Chief. See generally Defendant's Brief in Response to the Court's Order dated June 12, 2001.
The court is of the opinion that this late disclosed document tends to confirm the correctness of its conclusion in the August 18 memorandum order that Rollins had a property interest in his position. The most that can be said for the City's position, i.e., that the terms of this document do not apply to Rollins and the position of Executive Assistant Chief, is that it creates a triable issue of fact. If the City wishes to have a jury decide whether this and other documents maintained by the City, which recognize that an employee of the City — after completion of a probationary period — has a property interest in his job, apply to Rollins's former position as Executive Assistant Chief, the court is willing to submit that question in some form to the jury at trial. Otherwise, the court is persuaded that its August 18 memorandum order was correct.
Another example is a memorandum by former Assistant City Attorney Debra Kress, recently produced by the City to Rollins under order of Magistrate Judge Stickney.
Conclusion
Rollins's motion for reconsideration is GRANTED. The August 18 memorandum order is REINSTATED, with this caveat: if the City continues to maintain that Rollins did not have a property interest in his former position as Executive Assistant Chief, the court will treat that as a disputed fact which must be resolved by the jury. In all other respects, the memorandum orders of August 18, 2000 and December 4, 2000 are REINSTATED.