Opinion
CA 3:01-CV-1268-R
July 16, 2002
MEMORANDUM OPINION AND ORDER
Defendant's Motion for Summary Judgment is before the Court. Plaintiff Dr. S.A. Somodevilla ("Somodevilla" or "Plaintiff") filed this suit against Defendant City of Dallas ("City of Dallas" "City" or "Defendant"), alleging: (1) denial of due process pursuant to Section 1983; (2) negligent misrepresentation; and (3) breach of contract. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED as to all claims.
I. BACKGROUND FACTS
On October 1, 1987, Plaintiff was hired by the City of Dallas for the position of Psychologist with Psychological Services in the Dallas Police Department. In December 1991, Plaintiff was terminated because Psychological Services was closed pursuant to a reduction in force.
Plaintiff then received a contract to provide psychological services to the City as an independent contractor in December 1991. Plaintiff provided psychological services to the City as an independent contractor from approximately December 1, 1991, through May 1997, for $69,000 per year. The initial term of the contract was two years with an option to renew every year for four years.
In 1997, the Dallas Police Department made the decision to bring Psychological Services back in-house. Former Executive Assistant Chief of Police Manuel Vasquez ("Vasquez"), who at that time was over the Office of Management Services, which included the Personnel and Development Division, discussed with Plaintiff the City's decision to bring Psychological Services back in-house. Vasquez asked Plaintiff if he would be interested in providing in-house psychological services and returning to work for the City as an employee. Plaintiff stated he was interested in resuming work for the City as a staff psychologist.
Vasquez did not discuss a specific salary amount with Plaintiff. Plaintiff told Vasquez that he wanted his salary to be comparable to Dr. Cary Conaway's ("Conaway"), who had been hired by the City to administer psychological testing to police applicants. Taking into consideration Plaintiff's request, Vasquez's intention was to base the proposed salary on Somodevilla's earning of $69,000 as an independent contractor minus his office expenses. Vasquez recommended that the Police Department assume Somodevilla's lease and office expenses.
Vasquez directed former Deputy Chief of Police Ray Hawkins ("Hawkins"), who was the Division Commander of the Police Personnel and Development Division, to determine the proposed salary for Somodevilla. Hawkins, with Conaway's assistance, initiated paperwork to rehire Somodevilla.
The proposed salary amount of $66,479.92 exceeded the Police Department's maximum hiring salary amount of $55,913 for the position of Psychometrician 58 and would require approval from both the City Manager's Office and the Department of Human Resources. Vasquez spoke with Bennie Click ("Click"), Chief of Police at the time, and Click approved seeking City Manager approval for the proposed higher salary. Hawkins instructed the Payroll and Worker's Compensation Unit ("Payroll Unit") in the Police Personnel and Development Division to complete the Exceptional Salary Form for his signature, on or about May 30, 1997, in order to obtain approval for the proposed higher salary from the City Manager's Office and the Department of Human Resources. The Payroll Unit then prepared the Appointment Authorization Form, which was attached to the Exceptional Salary Form. The Exceptional Salary Form set forth the higher salary sought. The Payroll Unit then forwarded both forms to the Department of Human Resources for approval.
On June 16, 1997, Plaintiff resumed working for the City as an employee in the position of Psychometrician 58. On June 19, 1997, former Director of Human Resources Dianne Sword recommended approval of the higher salary for Plaintiff. The Exceptional Salary Form and the Appointment Authorization Form were returned to the Payroll Unit on or about June 23, 1997, without approval for the higher salary from the City Manager's Office.
Hawkins was informed that the City Manager's Office did not approve the requested higher salary for Somodevilla. Hawkins directed that Somodevilla be paid the department's hiring maximum of $55,913, which was within the Police Department's authority to approve. Because the City Manager's Office did not approve the higher salary for Plaintiff, the Police Department could only authorize the department hiring maximum salary, which it did. Thus, Somodevilla was paid the maximum salary the Police Department had the authority to approve.
When Plaintiff received his first paycheck approximately two weeks after returning to work for the City as an employee, Plaintiff discovered that his salary was $55,915.00, and not the higher salary he expected. Plaintiff received merit increases and cost of living increases.
On January 7, 2000, Plaintiff received an Equity Pay Adjustment which brought his salary to the level it would have been had Plaintiff received the higher salary of $66,640 when he returned working for the City. His annual salary increased from $68,652 to $80,731. Plaintiff seeks back pay from June 16, 1997, his date of hire, through January 7, 2000, the date of his Equity Pay Adjustment. On June 15, 2001, Plaintiff filed his original judicial petition, alleging negligent misrepresentation, breach of contract, and denial of due process.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 55(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears. Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc. 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
B. Plaintiff's Negligent Misrepresentation Claim
Plaintiff's negligent misrepresentation claim is barred by the applicable two-year statute of limitations because Plaintiff filed his suit after four years. The statute of limitations for negligent misrepresentation claims is two years. See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 885 (Tex. 1998). Plaintiff testified in his deposition that he first learned that his salary was less than expected when he received his first paycheck. Plaintiff resumed working for the City as an employee on June 16, 1997, and he received his first paycheck about two weeks later. Thus, on or about June 30, 1997, Plaintiff knew that his salary would be less than he expected. Plaintiff was required to file his suit no later than on or about June 30, 1999. Plaintiff, however, did not file suit until June 15, 2001, clearly in excess of the two-year limitations period. Accordingly, the City of Dallas is entitled to summary judgment on Plaintiff's negligent misrepresentation claim because Plaintiff failed to timely pursue his claim within the applicable two year statute of limitations.
C. Plaintiff's Breach of Contract Claim
Plaintiff's breach of contract claim also fails as a matter of law. Plaintiff alleges breach of contract by the City because Plaintiff did not receive the salary that he expected. It is undisputed that there is no written employment contract between the parties; thus, Plaintiff cannot establish a claim for breach of contract since no contract exists between the parties. Therefore, the City is entitled to summary judgment on Plaintiff's breach of contract claim.
Furthermore, even if a contract did exist between the parties, Defendant would still be entitled to summary judgment because Defendant established its affirmative defense of waiver. The elements of waiver are: (1) the full knowledge of a fraudulent act; and (2) the intentional waiver or ratification of the act. Williams v. City of Midland, 932 S.W.2d 679, 685 (Tex.App.-El Paso 1996, no writ). "When a person, induced by a fraud to enter an agreement, continues to accept benefits under that agreement after becoming fully aware of the fraud ratifies the agreement." Id. (citing Sears Roebuck Co. v. Meadows 878 S.W.2d 171, 178 (Tex.App.-Waco 1993, pet. granted), rev'd on other grounds, 877 S.W.2d 281 (Tex. 1994). The Texas Supreme Court has held that "[w]hen an employee continues working with knowledge of changes to the employment relationship, he or she accepts the modified terms as a matter of law." City of Odessa v. Barton, 967 S.W.2d 834 (Tex. 1998). "This is an issue that is normally a question of fact, but it may become one of law if the facts and circumstances are admitted or clearly established." Id. (citing Caldwell v. Callender Lake Property Owners Improvement Ass'n, 888 S.W.2d 903, 910 (Tex.App.-Texarkana 1994, writ denied). In this case, the issue of waiver can be decided as a matter of law because the relevant facts are undisputed.
Approximately two weeks after Plaintiff started working for the City on June 16, 1997, Plaintiff learned that his salary was less than he expected. Plaintiff continued working for the City after learning of the difference in his salary. Plaintiff could have refused the salary, resigned, and filed suit, but he chose to continue working for the City at the lower salary. Two-and-a-half years later, Plaintiff's salary was adjusted to increase his salary to the amount it would have been had he received the higher salary, but in the meantime, Plaintiff continued working for the City at the lower salary. Plaintiff received all merit increases and cost of living increases. Plaintiff accepted the benefits of his employment with the City after gaining full knowledge that he would not receive the higher salary that he expected. Thus, Plaintiff's actions constitute waiver as a matter of law of any alleged misrepresentation, and Defendant is entitled to summary judgment.
D. Plaintiff's Section 1983 Claim
Plaintiff's Section 1983 claim is barred by the applicable two-year statute of limitations. Plaintiff's cause of action accrued in 1997, and he was required to file suit by 1999. Plaintiff, however, did not file suit until 2001, four years later. There is no federal statute of limitations covering § 1983 actions, so the "most appropriate" state limitations statute applies of the state in which the alleged action arose. Johnson v. Railway Express Agency, 421 U.S. 454, 462 (1975); Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). The Supreme Court characterizes 42 U.S.C. § 1983 actions as personal injury actions for the purpose of choosing the applicable state statute of limitations. See Wilson v. Garcia, 471 U.S. 261 (1985); Drayden v. Needville Indep. School Dist., 642 F.2d 129, 132 (5th Cir. 1981). Plaintiff's action arose in Texas, which requires a claimant to file a suit for personal injury within two years after the cause of action accrues. See TEX. CIV. PRAC. REM. CODE ANN. § 16.003 (Vernon 1986). Therefore, lawsuits under Section 1983 must be brought within a two-year statute of limitations period. See National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 713 n. 22 (5th Cir. 1994); Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988); Peter Henderson Oil v. City of Port Arthur, 806 F.2d 1273, 1274-75 (5th Cir. 1987); Longoria v. City of Bay City, 779 F.2d 1136, 1137-38 (5 Cir. 1986).
Although the applicable state statute governs the limitations period, federal law is applied to determine when a Section 1983 cause of action accrues. See Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993); Drayden, 642 F.2d at 131; Rubin v. O'Koren, 644 F.2d 1023 (5th Cir. 1983). Pursuant to the federal standard, a cause of action accrues on the date the claimant either knows or should have known of his injury and its causal connection to the Defendant. See Metcalfe, 8 F.3d at 217.
Plaintiff testified in his deposition that he first learned that his salary was less than he expected when he received his first paycheck. Plaintiff resumed working for the City as an employee on June 16, 1997. He received his first paycheck about two weeks later. Thus, on or about June 30, 1997, Plaintiff knew that his salary would be less than he expected. Plaintiff had to file suit no later than on or about June 30, 1999, but Plaintiff waited four years to file suit on June 15, 2001. The suit was filed well beyond the two-year limitations period. Therefore, Defendant is entitled to summary judgment on Plaintiff's denial of due process pursuant to 42 U.S.C. § 1983 because it is barred by the applicable two-year statute of limitations.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to all claims. IT IS SO ORDERED.