Opinion
CIVIL ACTION NO. 3:99-CV-2960-P, CONSOLIDATED WITH, CIVIL ACTION NO. 3:00-CV-588-H
November 19, 2001
Memorandum Opinion and Order
Now before the Court are:
1. Plaintiffs' Motion for Partial Summary Judgment, filed July 31, 2001, Defendants' Response, and Plaintiffs' Reply;
2. Defendants' Objections to Plaintiffs' Motion for Partial Summary Judgment Evidence, filed August 20, 2001, and Plaintiffs' Response;
3. Defendants' Motion for Summary Judgment, filed August 15, 2001, Plaintiffs' Response, and Defendants' Reply;
4. Plaintiffs' Objections to Defendants' Summary Judgment Evidence, filed September 4, 2001;
5. Defendants' Objections to and Motion to Strike Plaintiffs' Evidence Filed in Support of Their Response to the Defendants' Motion for Summary Judgment, filed September 19, 2001; and
6. Plaintiffs' Motion to Bar, filed August 27, 2001, Defendants' Response, and Plaintiffs' Reply.
To the extent that the Court relies upon evidence objected to by one of the parties, the Court will examine the objections below. As to all other objections made by the parties, they are denied as moot.
After considering the parties' briefings, the arguments, and the applicable law, the Court GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiffs' Motion for Partial Summary Judgment, and GRANTS IN PART and DENIES IN PART Plaintiffs' Motion to Bar.
I. Background and Procedural History
This case involves a dispute between Plaintiffs and the City of Dallas and Dallas Police Chief Terrell Bolton. The controversy centers around the implementation of a plan to reorganize the police department by removing Plaintiffs from their appointed command staff jobs and returning them to the civil service ranks they had held previous to their command staff appointments. The events underlying this suit are largely undisputed by the parties.
Terrell Bolton was named Chief of Police by City Manager Teodoro Benavides on October 1, 1999. (Def. App. 358). Bolton quickly decided to make major changes to the command structure of the Dallas Police Department ("DPD"), specifically by making personnel changes at the highest levels of the DPD.
On October 30, 1999, Bolton implemented his reorganization. Bolton "removed" nine individuals, including Plaintiffs Jackson and Taylor, former Plaintiffs Marlin Price, John Holt, Jill Muncy, Doug Kowalski, Don Whitten, and Pam Walt, as well as Manuel Vasquez from their then-current positions. Plaintiffs Jackson and Taylor each briefly met with Bolton, then were given a letter detailing their removal and told to meet with Assistant Chief Randy Hampton to learn their new assignment.
Jackson immediately retired from the DPD on October 30, 1999 upon learning of his removal and potential reassignment. In January of 2001, Jackson accepted a new job as Chief of Police for the City of Killeen, Texas. (Pls.' App. Ex. 1, p. 3). Taylor wrote to Benavides on November 5, 1999 seeking a written statement of the reasons for his demotion and seeking a hearing. Benavides responded on November 16, 1999 by letter, stating "you do not have the right of appeal." (Pls.' App. Ex. 2, p. 15). Taylor retired from the DPD on March 27, 2001. (Pls.' App. Ex. 2, p. 10).
On June 21, 2001, the City of Dallas sent letters to Plaintiffs Robert Jackson and Willie Taylor "advising" the Plaintiffs that they had been "reinstated" to their previously-held positions. (Pls.' App. at 3, 7, 10, 16.) The letters told Plaintiffs that they were to report for duty on August 15, 2001, and that they would be advised within two weeks of the exact job and duties they would hold at that time. Id. Both Taylor and Jackson have refused to accept their reinstatements, rejecting the checks offered by the City, and refusing to return to employment with the City. (Pls.' App. at 3, 10.)
Plaintiffs thereafter brought suit. Plaintiffs allege several causes of action. Plaintiffs Jackson and Taylor bring a claim alleging violation of 42 U.S.C. § 1983 for violation of the Fourteenth Amendment. (First Amend. Compl. ¶¶ 21-43.) Plaintiffs also bring pendent state claims, alleging breach of contract and wrongful termination. (First Amend. Compl. ¶¶ 108-116.) In addition, Jackson asserts a second violation of section 1983 due to an alleged violation of his First Amendment rights. (First Amend. Compl. ¶¶ 44-61.)
Each party has subsequently moved for summary judgment. Plaintiffs argue that they are entitled to partial summary judgment on two grounds. First, Plaintiffs argue that there are no remaining material issues of fact as to whether they are entitled to relief on substantive, as well as procedural, due process grounds. Plaintiffs assert that they each held a property right to their position within the Dallas Police Department. Their substantive due process rights were violated, they argue, by the Defendants' arbitrary and capricious termination of that property right. Second, Plaintiffs argue that they were denied procedural due process because there was no process for them to appeal the deprivation of their jobs.
Defendants also bring a motion for summary judgment on all of Plaintiffs' claims. Defendants argue that various immunity doctrines provide both the City and the individual Defendants with a total shield from liability in this suit. In their motion for summary judgment, Defendants argue that the City and the individual Defendants are entitled to sovereign immunity, and that the individual Defendants are further shielded by the doctrine of qualified immunity. Moreover, Defendants dispute Plaintiffs section 1983 claim, arguing that Plaintiffs had no property right in their jobs, that even if they did, the Defendants' actions were not arbitrary and capricious, and that the Plaintiffs have not shown that the City had a policy or custom that violated Plaintiffs' constitutional rights. Defendants also seek summary judgment on Plaintiffs' state law claims and Jackson's First Amendment claim.
II. Discussion
A. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the nonmoving party directs. Id.
B. Section 1983 Claims — Fourteenth Amendment
Both Plaintiffs and Defendants move this Court to grant summary judgment on their behalf on Plaintiffs' section 1983 due process claims. Plaintiffs have sued the City of Dallas and the Individual defendants in their official capacity, as well as bringing suit against the Individual defendants in their personal capacities.
1. Legal Standards
Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law." 42 U.S.C. § 1983. At the outset, then, the Court must determine whether Plaintiffs have sufficiently alleged a constitutional violation. See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (holding that the plaintiff must assert a constitutional right before the court determines whether the right is "clearly established"); Samaad v. City of Dallas, 940 F.2d 925, 940 (5th Cir. 1991) ("In Siegert, the Court holds that a court addressing a claim of qualified immunity should first consider 'whether the plaintiff asserted a violation of a constitutional right at all' before reaching the possibly unnecessary question of whether the plaintiff asserted a violation of a 'clearly established' right.")
Therefore, the Court must address the threshold question in this case: did Plaintiffs have a property right in their employment within the DPD. Plaintiffs assert both substantive and procedural violations of their due process rights. The first step in determining whether there was a constitutional violation is determining whether they held a property right that would entitle them to due process.
2. Plaintiffs Alleged Property Right
Where a person has a property right in continued employment, that right may not be deprived without due process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985). The Constitution, however, does not create property interests; "[r]ather[,] they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . . ." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). A property interest arises from a legitimate claim of entitlement to continued employment in a given position. It can derive from a mutually explicit understanding, a statute, or an express contract. See Perry v. Sindermann, 408 U.S. 593, 601-02 (1972) ( overruled in part on other grounds by Rust v. Sullivan, 500 U.S. 173 (1991)); Conley v. Board of Trustees of Grenada County Hospital, 707 F.2d 175, 179 (5th Cir. 1983); Wells v. Dallas Independent School District, 576 F. Supp. 497, 503 (N.D. Tex. 1983) (Fish, J.). To determine whether a property right exists, a court must look to the applicable state law, Bishop v. Wood, 426 U.S. 341, 344 (1976); Wallace v. Shreve Memorial Library, 97 F.3d 746, 748 (5th Cir. 1996), in this case, Texas state law.
It is among the most well-established principles of Texas law "that, absent an express agreement to the contrary, employment may be terminated at any time by either party with or without cause." McDonald v. City of Corinth, Texas, 102 F.3d 152, 156 (5th Cir. 1996).
However, the Fifth Circuit has recognized that a city charter or personnel policy allowing for dismissal solely on the basis of cause can create a property interest. See Henderson v. Sotelo, 761 F.2d 1093, 1096 (5th Cir. 1985) ("Thus, [home rule] cities may determine by charter whether employment in certain city offices is at will or continuous absent just cause for dismissal, and Texas courts will give effect to such charter provisions."); see also Schaper v. City of Huntsville, 813 F.2d 709, 713-14, n. 4 (5th Cir. 1987) (holding that personnel policy mandating termination only for just cause creates a property interest in job). The Texas Supreme Court, in turn, has extended this line of reasoning to demotions. See Grounds v. Tolar Independent School District, 856 S.W.2d 417, 419 (Tex. 1993); see also Richardson v. Felix, 856 F.2d 505, 509 (3d Cir. 1988) (recognizing a property interest where dismissal, demotion, or suspension was allowed only for cause). Moreover, a property interest may "also arise from . . . unwritten state or local government policies or from 'mutually explicit understandings' between a government employer and employee." Woody v. City of Dallas, 809 F. Supp. 466, 473 (N.D. Tex. 1992) (Fitzwater, J.) ( quoting Stana v. School District of City of Pittsburgh, 775 F.2d 122, 126 (3d Cir. 1985)).
Plaintiffs assert that the City Charter, the City Personnel Rules, other personnel memoranda, and oral statements made to Plaintiffs constitute a basis for finding that they held a property interest in their continued employment at the same level within the DPD. Defendants argue that a reading of the City Charter shows that Plaintiffs, because they held high-level managerial positions, were not vested with property rights in their positions.
a. City of Dallas Charter
The Charter contains several provisions which address city employee's rights in their continued employment. Plaintiffs, in their positions of Executive Assistant Chief and Deputy Chief of Police were, for the purposes of the terminology used by the City Charter, both equivalent to Assistant Department Directors and also considered "unclassified" civil service positions.
The parties point to three City Charter provisions, the interpretation of which are in dispute. The Court looks to the provisions to determine their meaning, and approaches the task as one of statutory interpretation. Dawson v. City of Amarillo, 355 S.W.2d 827, 830 (Tex.Civ.App.-Amarillo 1962, writ ref' d n.r.e.). The Court therefore decides the meaning of these Charter provisions as a matter of law.
1. Chapter XVI, Sections 10 and 11
In dispute is the meaning of Chapter XVI, Section 10, entitled "Probationary Period," which provides:
Appointments of provisions 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 such period by the city manager, or the head of the department in which said probationer is employed without right of appeal.
Pls.' App. at 52 (City Charter, Ch. XVI, § 10). Plaintiffs argue that this provision establishes a property interest that vests when an employee completes the six month probationary period. Plaintiffs point out that both Taylor and Jackson had served approximately eight years in the positions they held in October of 1999. See Pls.' App. at 2, 9. Under Plaintiffs' interpretation, once the probationary period has terminated, an employee can no longer be fired "without right of appeal" and therefore that due process rights have attached to the job.
Defendants argue that Plaintiffs have failed to read this section in the context of the entire Charter, and that the next section of the Charter specifically exempts Plaintiffs from the language of Section 10. Section 11, entitled "Employee Actions After Probation Period," provides:
Any classified or unclassified officer or employee may be removed, laid off, or reduced in grade by the city manager, or the head of the department in which the officer or employee is employed after the six months' probationary period has expired. The officer taking the action shall, upon request, furnish the discharged or reduced officer or employee with a written statement of the reasons for the action. The discharged or reduced officer or employee shall have the right to demand a public hearing upon the charges, within a reasonable time after notice of the action, before the trial board as provided by this Charter. This right of appeal does not apply to department directors, assistant department directors, and other managerial personnel designated by the city council.
Defs.' App. at 132 (City Charter, Ch. XVI, § 11(a)) (emphasis added). Defendants argue that read together, these sections of Chapter XVI have two important implications. First, Section 11(a) does not include any language requiring any cause to remove, lay off, or reduce in grade any employee of the city even after the probationary period has expired. Second, the last sentence of section 1 l(a) specifically exempts Plaintiffs from the appeals process.
Reading these provisions together, the Court finds that Plaintiffs' argument that Section 10 grants a property right and attendant procedural rights to every employee who completes the probationary period is unpersuasive. Section 1 l(a) clearly states an exemption exists for managerial personnel. Thus, finding that managerial personnel do not have a property interest in their jobs does not make Section 10 meaningless. The Court finds that all Section 10 stands for is that probationary employees lack a property right in their positions. Section 11(a) then sets out which employees later obtain a property interest and a process for appealing employment decisions. The City Charter thus limits the right of appeal for non-probationary employees and excludes managerial personnel. Because Plaintiffs are the equivalent to "assistant department directors," section 1 l(a) precludes them from asserting a right to an appeals process. Therefore, the Court finds that neither section 10 nor section 11 establishes the property interest that Plaintiffs assert.
2. Chapter XII, Section 5
Plaintiffs argue that another Charter section specifically vests high-ranking police employees with a property interest in their job. Chapter XII, Section 5, entitled "Removal of Chief or Assistants" more specifically addresses the employment rights of police personnel and provides:
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.
Pls.' App. at 142 (City Charter, Ch. XII, § 5). Plaintiffs point specifically to the language "unfitness for the discharge of the duties of the position and not for any cause." The addition of this language, Plaintiffs argue, limits the ability to terminate or demote high-ranking police employees unless there has been a finding of unfitness. Plaintiffs assert that the Court must consider each provision of the statute and that to deny Plaintiffs a property interest would render Chapter XII, Section 5 meaningless. Plaintiffs urge that unless such police employees can only be demoted for unfitness, this provision is rendered meaningless.
Defendants interpret this section as simply outlining the procedure for demotion under very specific circumstances. Defendants argue that the provision only applies after an employee has been removed from a position due to her unfitness for such position, but that the provision does not provide for any substantive property right in a high-ranking police position. Defendants point to another Supreme Court decision which found that "merely conditioning an employee's removal on compliance with certain specified procedures" did not confer a property interest upon the employee. Bishop v. Wood, 426 U.S. 341, 345 (1976). The Court finds that Bishop does control, as this Charter section is similar to that at issue in Bishop.
The Bishop Court considered this employment provision which provided, in part: "If apermanent employee fails to perform work up to the standard of the classification held, or continues to be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the City Manager. Any discharged employee shall be given written notice of his discharge setting forth the effective date and reasons for his discharge if he shall request such a notice." Bishop, 426 U.S. at 344, n. 5.
Plaintiffs argue that such an interpretation "begs the question: If a [covered employee] can be demoted at any time for any reason and without a finding of 'unfitness for the discharge of the duties of the position,' then why have a Charter provision that expressly states that" such employee shall be demoted to their prior appointment. Pls.' Mot, Summ. J. Brief, at 15. In addition, Plaintiffs argue that the inclusion of the word "if" means that finding that an employee was unfit for her position is a condition precedent to that employee's removal. The Court does not dispute that the inclusion of the word "if" is certainly conditional language that may specify a condition precedent. See Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 357 (Tex.App.-Houston [14th Dist] 1995, no writ) ("Conditional language, such as 'if,' is indicative that a condition precedent was intended by the parties). However, the Court does not agree with Plaintiffs' reading of the provision. The Court finds that this Charter provision does not create a necessary condition precedent (the finding of unfitness) prior to the removal of a high-level ranking officer. Rather, the condition precedent seems to envelop the better part of the Charter section, that is the condition precedent requires several things: a high-ranking police employee, removal from that position, and removal due to unfitness and not for any cause justifying dismissal of the service. It is only when all of these conditions are met that the latter part of the provision has any effect, that is, only when this very specific event has occurred does the employee have the specific remedy afforded by the provision: restoration of her prior position or demotion. Given this interpretation, perhaps Section 5 stands for the proposition that a command employee who was promoted from within the Department has a property right in her former job, but only if her demotion was due to unfitness for the promotion and does not rise to the level of behavior that would justify total dismissal from the service. However, the finding that under certain circumstances high-ranking police employees have a property right in a former job does not create a general property right in the promoted job requiring due process before demotion.
Therefore, the Court finds that Section 5 is a very specific provision applicable only in one very limited circumstance. Section 5 sets out the procedure for the demotion of an employee who was promoted to a high-ranking police position but who was found to be unfit for such position. The Charter sets out a provision for dealing with this limited circumstance; it does not provide a blanket property right for all high-ranking police officials. Therefore, the Court determines that Chapter XVI, Section 5 does not create an enforceable property interest for Plaintiffs.
3. Primacy of the City Charter
The Court, therefore, finds that Plaintiffs do not have a property interest guaranteed by the City of Dallas charter. The Charter excepts managerial personnel from the appeals process that it guarantees other City employees. Thus, Plaintiffs' section 1983 claim cannot stand upon a property right guaranteed by the City Charter.
Nevertheless, a property interest may still be established by "written or unwritten state or local government policies or from 'mutually explicit understandings' between a government employer and employee'." Woody v. City of Dallas, 809 F. Supp. 466, 473 (N.D. Tex. 1992) (Fitzwater, J.) ( quoting Stana v. School Dist. of Pittsburgh, 775 F.2d 122, 126 (3d Cir. 1985)). Such understandings may result in the creation of a property interest even where such interest is not explicit. "[A]bsence of such an explicit contractual provision may not always foreclose the possibility that a [plaintiff] has a property interest in reemployment. . . . Explicit contractual provisions may be supplemented by other agreements implied by the promisor's words and conduct in the light of the surrounding circumstances." Perry v. Sindermann, 408 U.S. 593, 601-02 (1972) (internal quotations and citations omitted). Therefore, although the City Charter itself does not create a property interest for Plaintiffs, the Court must look further to determine if there are other grounds for Plaintiffs' claims that the City created such an entitlement.
b. City Personnel Rules
Plaintiffs also point to certain City of Dallas Personnel Rules and claim that they also provide proof that Plaintiffs held a property interest in their jobs. Defendants argue that the Personnel Rules in question do not apply to Plaintiffs, and if they do, they are inconsistent with the City Charter. The Court finds that the Personnel Rules are not inconsistent with the Charter, but reflect the Charter's exclusion of high-ranking managerial personnel from the City's procedures for appealing employment decisions.
Plaintiffs point to Personnel Rules that echo the language of Chapter XVI, Section 10, and create a general scheme of probationary employment. Section 34-11 of the Rules provides for two regulations regarding the probationary period.
(c) Initial probation. Until an employee successfully completes probation required to be initially served after appointment or reappointment to city Memorandum Opinion and Order — Page 14 99-CV-2960 employment, the employee has no property right to his position and may not appeal a termination that he failed probation nor the subsequent termination of his employment with the city.
(d) Promotional probation. Until an employee successfully completes probation requited to be served after a promotion, the employee has no property right to the promoted position and may not appeal a determination that he failed probation nor any subsequent demotion.
Defs.' App., at 14 (Personnel Rules § 34-11).
Plaintiffs argue, as they did with the City Charter, that this provision creates a property interest for every City employee who successfully completes the probationary period. However, as with the City Charter, the Court looks to the rest of the Personnel Rules and finds that the City has excluded certain City employees from this entitlement. The subsequent Personnel Rules that set out the specifics of the appeals process exclude Plaintiffs from the protection of the grievance and appeals process.
The section which outlines Grievance and Appeal Procedures is clear that it applies to all City employees except "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." Defs.' App. at 41 (Personnel Rules § 34-38(a)(1)). Section 34-38 applies to Plaintiffs and excludes them from the protections of the Grievance and Appeal Procedures. This conclusion garners further support from an additional Personnel Rule which outlines the procedure for "appeal of demotion or discharge of certain managerial employees." Defs.' App. at 46D (Personnel Rules § 34-41). This section grants what Plaintiffs seek, a right of appeal, but limits who is eligible for such an appeal. A managerial employee may appeal only if "he . . . completed probation in his position before April 2, 1983." Defs.' App. at 46D (Personnel Rules § 34-41(a)(1)(A)). This rule does not apply to Plaintiffs because Jackson was promoted to Executive Assistant Chief of Police on October 11, 1991, and Taylor was promoted to Deputy Chief of Police on October 29, 1991. First Amend. Compl. ¶¶ 4-5. Therefore, neither would be eligible for the right of appeal granted by Section 34-41.
The Court finds, therefore, that the City Personnel Rules do not create property interests for Plaintiffs. The Personnel Rules reflect a similar division between all city employees and high-ranking managerial personnel. While there may be a general property right in employment that exists after an employee completes the probationary period, the City is consistent in excluding managerial employees such as Plaintiffs. Therefore, Plaintiffs cannot rely on the Personnel Rules to find a property interest in their employment.
c. Oral Statements and City Memoranda
Plaintiffs also argue that their property interest grows out of oral statements made by other City employees to Plaintiffs and through two documents. The Court considers these additional potential sources of a property interest.
1. "Property Right" Policy Document
Plaintiffs argue that a four-page document issued by the City's Human Resources Department also applies to Plaintiffs and established a property interest in their employment. The document states: "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. Due process requires that an employee be given specific notice of the reason of termination or other disciplinary action affecting an employee's property right." Pls.' App. 167.
Although Plaintiffs present evidence that this document was distributed during employee personnel orientations, Pls.' App. 255, Plaintiffs do not present any evidence that they ever received the document or that they had knowledge or relied on its statements.
In addition, language in this document shows that it is consistent with the City Charter and the Personnel Rules' approach to granting property rights in employment. The document outlines a general property interest in employment. However, in the next section which describes the "grievance/disciplinary appeal process," the document points to Personnel Rule Section 34-38. As discussed above, this section specifically excludes "department director[s], assistant department directors], or other managerial personnel." Defs.' App. at 41 (Personnel Rules § 34-38(a)(1)). Therefore, this document, while more general, still reflects the basic division between all city employees and managerial personnel who are excluded from the general right to appeal employment decisions.
Therefore, the Court finds that this document did not create a property interest or that it creates the sort of mutual understanding which would cause the Court to find an implied property right.
2. Kress Document
Plaintiffs also point to a document entitled "Legal Aspects of the City of Dallas' Grievance Process" ("Kress document") as supporting a finding that Plaintiffs held a property interest in their employment. See Pls.' App. 401-412. Plaintiffs assert that the document was produced "for inclusion into a compilation of documents used by the City to train its employees and individuals who were not City employees, including administrative law judges." Pls.' Mot. Summ. J. Brief, at 21. Plaintiffs claim that the document is proof that the City knew that Plaintiffs had a property interest in their job. The Document examines various provisions of the City Charter and the Personnel Rules and reaches this conclusion: "Generally, removal from employment, after the completion of the six months or the extension period, could only be accomplished 'for cause' (rule violations) and by affording due process (pre-termination and post-termination appeal rights)." Pls.' App. at 404.
Defendants point out that the memo also notes the primacy of the City Charter, stating that various City Charter provisions and rules "may expand, define, or explain the basic provisions of the Charter but none may be inconsistent with or overrule the Charter." Pls.' App. at 402. Defendants argue that the memo should not be considered because it is inconsistent with the Charter. However, the Court finds that the document, like the Personnel Rules and the Property Rights document, is still consistent with the general scheme set out in the Charter. That is, although there is a broad right to employment created by the City, certain kinds of managerial employees are excluded. In the discussion of grievance procedure, the Kress document also refers to section 34-38 of the Personnel Rules. Pls.' App. at 406-09. This section, as discussed above, clearly excludes managerial personnel from the procedures described therein. Defs.' App. at 41 (Personnel Rules § 34-38(a)(1)). Although the memo is not as specific as the Personnel Rules or the City Charter, the Court finds that its discussion is aimed at the general employment rights of city employees, but does not create such rights for those employees who otherwise lack a property interest in their jobs.
Though Plaintiffs point to the Kress document as a substantive source of their rights pursuant to the Charter and the Personnel Rules, they do not assert having knowledge of the document or that it in some way it implied a property right that the Court should now consider. Therefore, the Court does not consider the Kress document as creating a property interest for Plaintiffs.
3. Oral Statements
Plaintiffs also assert that various City employees made oral statements to them assuring them that they could only be demoted for cause. Jackson claims that Assistant City Attorney Janice Moss assured him that he could only be demoted for cause or unfitness for duty. Pls.' App. at 4, 330. Jackson also states that Deputy Chief John Chappelle and Assistant Chief Sam Gonzales told him that he could only be demoted for cause. Pls.' App. at 4. Taylor claims that Jackson assured him that "he did not have to worry about [being removed from the Executive Ranks]." Defs.'App. 437, 439A, 440.
Defendants object to Plaintiffs' inclusion of the statements allegedly made by Moss to Jackson, arguing that they are protected by the attorney-client privilege. The Court does not reach Defendants' objection because even if the Court considers the statements, Plaintiffs fail to establish that they created a property interest in Plaintiffs' command positions.
Texas courts have rejected binding employers based on such indefinite statements. The Texas Supreme Court held,
for such a contract to exist, the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances. General comments that an employee will not be discharged as long as his work is satisfactory do not in themselves manifest such an intent. Neither do statements that an employee will be discharged only for 'good reason' or 'good cause' when there is no agreement on what those terms encompass. Without such agreement the employee cannot reasonably expect to limit the employer's right to terminate him. An employee who has no formal agreement with his employer cannot construct one out of indefinite comments, encouragements, or assurances.Montgomery County Hospital District v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). The statements that Plaintiffs point to are just the sort that the Texas Supreme Court has held are insufficient to bind an employer. The cases that Plaintiffs cite to distinguish Brown include statements of great specificity, and are not general statements like the statement in Brown and the alleged statements made to Plaintiffs in the instant case. See Miksch v. Exxon Corp., 979 S.W.2d 700, 705 (Tex.App.-Houston [14th Dist] 1998, pet. denied); Gaede v. SK Investments, Inc., 38 S.W.3d 753, 759 (Tex.App.-Houston [14th Dist] 2001, pet. denied.).
Therefore, the Court finds that the oral statements alleged by Plaintiffs fail to establish a property right or the sort of "mutual understanding" which would allow the Court to find a property interest despite the lack of an explicit right from the City Charter. As a result, the Court concludes that Plaintiffs did not have a property interest in their employment.
Because the Court finds there was no constitutional violation involved here, the Court GRANTS Defendants' Motion for Summary Judgment and dismisses Plaintiffs section 1983 claims brought against the City of Dallas, Terrell Bolton, Teodoro Benavides, and Charles Daniels. In addition, because the Court has found that Plaintiffs did not have a property interest in their jobs, and that they were at-will employees, the Court also GRANTS Defendants' Motion on Plaintiffs' pendent state claims, breach of contract and wrongful termination.
C. Section 1983 Claim — First Amendment
Plaintiff Jackson has also brought a section 1983 claim for an alleged infringement of his First Amendment rights. First Amend. Compl. ¶¶ [44-61. Jackson claims that his demotion was retaliatory due to his deposition testimony in the case Willard Rollins v. City of Dallas, Texas, Civil Action No. 3:99-CV-2249-G. First Amend. Compl. ¶¶ 48-49. Jackson testified on October 16, 1999 regarding former Chief of Police Bennie Click's discipline of Willard Rollins. Id. Defendants move for summary judgment on this cause of action, claiming that Jackson cannot prove his claim as a matter of law.
The Fifth Circuit has set out the proper legal standard to apply. "To prove a retaliation claim cognizable under the First Amendment, [plaintiff] must (1) show that his speech was constitutionally protected, i.e., that it involved a matter of public concern; (2) that his interest in commenting on the matters of public concern outweighs the public employer's interest in promoting efficiency; and (3) that his speech was a motivating or substantial factor in the termination decision." Cabrol v. Town of Youngsville, 106 F.3d 101, 108 (5th Cir. 1997).
Defendants, in their motion for summary judgment, focus primarily on the third element, arguing that Plaintiff has not presented any evidence showing a causal connection between Jackson's deposition testimony and his later demotion. The Fifth Circuit has held that alleging a suspicious chronology of events can be enough to allow a First Amendment claim to survive summary judgment. See Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992); see also Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1424 (5th Cir. 1997). However, the Court distinguishes the instant case and grants Defendants' motion.
Plaintiff Jackson has failed to assert compelling evidence to show a causal connection between his deposition testimony and subsequent demotion. Jackson testified in the Rollins case on October 16, 1999. Pls.' Resp. App. at 36-38. On October 15, 1999, the day before, Bolton testified in the same case, reaching a different conclusion than Jackson had, and criticizing Jackson personally and professionally. Pls.' Resp. App. at 41-42. Two weeks later, Bolton demoted Jackson as part of his reorganization plan. Pls.' App. at 2. In addition, Bolton did not just demote Jackson, he eliminated all of the positions of Executive Assistant Chief. Defs' App. at 412. Further, Jackson, in his deposition testimony, criticized Bolton's predecessor, Bennie Click, and not Bolton. Pls.' Resp. App. at 36-38. Finally, there is evidence that prior to Jackson's deposition, Bolton's plan of reorganization included elimination of all of the Executive Assistant Chief positions. Defs.' App. at 392, 395.
The Court also notes that although neither of the parties raised the issue in their briefing, it also appears that Defendants would be entitled to an affirmative defense on Jackson's First Amendment claim. The Fifth Circuit has held that a defendant "can escape liability by showing that it would have taken the same action even in the absence of the protected conduct." Gerhart v. Hayes, 217 F.3d 320, 321 (5th Cir. 2000); see also Brady, 113 F.3d at 1423.
Because the Court finds that Jackson has failed to provide any evidence showing a causal connection between his deposition testimony and his demotion, the Court GRANTS Defendants' motion for summary judgment on Jackson's First Amendment claim.
III. Motion to Bar
Finally, the Court considers Plaintiffs' Motion to Bar. Plaintiffs seek an order from this Court prohibiting any attorney in the Dallas City Attorney's Office from doing any legal work on behalf of Defendants in this case. It appears that Plaintiffs seek this Court to enforce its own Order of June 15, 2001, which ordered that Janice Smith Moss, Lizbeth Islas Plaster, Jason D. McClain, and Melissa M. Morales be withdrawn as counsel of record for Defendants and that E. Leon Carter, Thomas L. Case, and the law firm of Case Carter Salyers Henry, P.C. be substituted as counsel of record for Defendants. See Order (June 15, 2001).
Plaintiffs argue that counsel had reached an agreement before submitting the agreed order that the City Attorney's Office would no longer be involved in any legal work after the substitution. Pls.' Mot. to Bar, Ex. B, Hardwick Aff. ¶¶ 5-6. Plaintiffs' counsel claims in its motion that after such an agreement, Melissa Morales continued to be involved in the litigation, attending depositions, and sending Plaintiffs' counsel motion papers. Pls.' Mot. to Bar, at 3. Plaintiffs seek the Court to order the City Attorney's Office from doing any further legal work on this case.
Plaintiffs also point to the Texas Rules of Professional Conduct, and argue that the continued involvement of the City Attorney's Office violates Rule 3.08, which prohibits a lawyer from "continu[ing] employment as an advocate before a tribunal in a . . . pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyers client" unless one of several exceptions is met. Due to the Court's June 15, 2001 order and the Texas Rule, Plaintiffs seek to bar the City Attorney's Office from doing any further legal work on behalf of Defendants.
Defendants essentially argue that the City Attorney's Office attorneys are not in violation of Texas Rule 3.08 because the comments to the Rule state that the Rule "does not prohibit the lawyer who may or will be a witness from participating in the preparation of a matter for presentation to a tribunal." Rule 3.08, comment 8 (emphasis added). The comment further states that "another lawyer in the testifying lawyer's firm may act as an advocate, providing the client's informed consent is obtained." Id. Defendants also point to Fifth Circuit law regarding motions to disqualify counsel, arguing that only the testifying lawyer should be barred, but that the City Attorney's Office itself need not be disqualified.
The Court finds both parties' arguments to be inapposite. Plaintiffs have moved to bar based upon the Court's earlier order. Plaintiffs have not brought a motion to disqualify. The June 15, 2001 order only specifically ordered the withdrawal of the four listed attorneys. This Court has never ordered the City Attorney's Office to withdraw from representation of Defendants. 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.
The Court bars Janice Smith Moss, Lizbeth Islas Plaster, Jason D. McClain, and Melissa M. Morales from performing any further legal work for Defendants in this suit. However, the Court DENIES Plaintiffs' motion insofar as Plaintiffs seek the Court to bar the City Attorney's Office from continuing to represent Defendants.
Conclusion
For the foregoing reasons, the Court GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiffs' Motion for Partial Summary Judgment, and GRANTS IN PART and DENIES IN PART Plaintiffs' Motion to Bar.