Brown v. Cty of Niota

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0180P (6th Cir.)

File Name: 00a0180p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



GERALD M. BROWN; NICK D.



ANDERSON,



Plaintiffs-Appellants,



No. 99-5749



v. >







CITY OF NIOTA, TENNESSEE;



L. S. LEE; EVA BRAKEBILL;



ALAN WATKINS; JOEL



PARHAM,

Defendants-Appellees. 

1

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 98-00064—Curtis L. Collier, District Judge.

Argued: April 27, 2000

Decided and Filed: May 31, 2000

Before: KENNEDY, SILER, and BATCHELDER, Circuit

Judges.

1

2 Brown, et al. v. City of Niota, No. 99-5749 No. 99-5749 Brown, et al. v. City of Niota, 11

Tennessee, et al. Tennessee, et al.

_________________ plaintiffs’ claim that they were deprived of liberty without due

process of law.

COUNSEL

III. Conclusion

ARGUED: Peter Alliman, WHITE, CARSON, &

ALLIMAN, Madisonville, Tennessee, for Appellants. H. For the foregoing reasons, we affirm the judgment of the

Chris Trew, HIGGINS, BIDDLE, CHESTER & TREW, district court.

Athens, Tennessee, for Appellees. ON BRIEF: Peter

Alliman, WHITE, CARSON, & ALLIMAN, Madisonville,

Tennessee, for Appellants. H. Chris Trew, HIGGINS,

BIDDLE, CHESTER & TREW, Athens, Tennessee, William

A. Buckley, Jr., Athens, Tennessee, for Appellees.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Plaintiffs, Gerald M. Brown

and Nick D. Anderson, appeal the district court’s decision to

grant summary judgment in favor of the defendants, City of

Niota, et al., in this section 1983 action. On appeal plaintiffs

raise two issues: (1) whether the board of commissioners’

promulgation of employee rules and regulations created a

property interest in continued employment with the City of

Niota entitling the plaintiffs to notice and a hearing prior to

termination; and (2) whether the plaintiffs’ filing of this

lawsuit before the defendants received actual notice of the

plaintiffs’ desire for a name-clearing hearing bars the

plaintiffs from claiming that the defendants deprived them of

their liberty interests without due process of law. We affirm

the decision of the district court.

I. Facts

Plaintiff Brown was employed as a full-time police officer

with the City of Niota beginning in October, 1994, and

plaintiff Anderson was employed as a part-time reserve

officer beginning in November, 1993. During the course of

their employment with the city, the plaintiffs became involved

10 Brown, et al. v. City of Niota, No. 99-5749 No. 99-5749 Brown, et al. v. City of Niota, 3

Tennessee, et al. Tennessee, et al.

process of law because they had not been denied a name- in an investigation of a resident named Michael Cardin. On

clearing hearing by the city. December 23, 1997, Cardin confronted Brown and in the

course of this confrontation, Brown pushed Cardin. On

The plaintiffs mailed a letter to the mayor of Niota on December 29, 1997, Brown was contacted by the chief of

February 12, 1998, requesting the mayor’s response to their police, defendant Parham, and informed that he was no longer

demand for a name-clearing hearing by February 16, 1998. It a city employee.

is undisputed that the mayor did not receive the letter until

February 17, 1998. By that date, the plaintiffs, apparently On January 12, 1998, the Niota board of commissioners

assuming that no response should be interpreted as a denial, held a board meeting at which they discussed Brown’s

filed this action in federal court. In their complaint, they employment. Defendant Lee made a motion to dismiss

alleged that they had suffered liberty deprivations without due Brown from his employment with the police department. Lee

process. To support these allegations the plaintiffs alleged stated that a vote of the commissioners was needed to make

that the statements at the board meeting were false and the employment decision legal. The City of Niota had

defamatory and that they requested a name-clearing hearing promulgated employee rules and regulations which stated that

which was denied. Once a plaintiff has satisfied the five a city employee could be dismissed only by a vote of the

elements of the Ludwig test, he is entitled to a name-clearing board of commissioners. After a heated discussion, in which

hearing “when plaintiff has made a request for such a the shoving incident was mentioned as the primary reason for

hearing.” Ludwig, 123 F.3d at 410. In Ludwig, the court dismissal, the commissioners voted 3 to 2 to dismiss Brown.

found that the plaintiff’s letter had not clearly stated the They also agreed to award him back pay from December 29,

plaintiff’s desire for a name-clearing hearing; therefore, the 1997 until January 12, 1998. The notice of separation stated

plaintiff’s request for relief was denied because he could not that he was dismissed for unsatisfactory behavior.

show that he had been denied a name-clearing hearing. Id. at Immediately after this termination decision was made,

411. Although plaintiffs’ request was clearly stated in their defendant Lee made a motion to dismiss Anderson with the

letter, this letter was not received by the mayor until February stated reason being “conflict of interest.” Anderson was

17, 1998. The plaintiffs filed their complaint that same day. employed by both the Fire and Police Departments at that

As of the filing of the complaint, the plaintiffs could not show time. Also, his wife was a commissioner on the board.

that they had been denied a name-clearing hearing because Defendant Lee stated that the conflict was due to his wife’s

they could not show that the defendants were aware of their being on the board, but when the mayor assumed that the

desire for this hearing.3 Because plaintiffs must request a basis for the motion was Anderson’s employment with both

name-clearing hearing and be denied this hearing before they the police and fire departments, none of the commissioners

have suffered a deprivation of their liberty interest without contradicted her. The motion to dismiss Anderson was

due process of law we believe the district court was correct in passed by a 3 to 2 vote.

granting the defendant’s summary judgment motion on the

On February 12, 1998, plaintiffs mailed a letter to the

mayor of Niota requesting a name-clearing hearing arising out

of the comments made at the board meeting. The letter stated

that the mayor should notify the plaintiffs of her decision by

3

There is no evidence in the record to indicate that the plaintiffs ever February 16, 1998. If the plaintiffs had not heard from the

renewed their request for a name-clearing hearing and were denied this mayor by that date, the letter stated that they would take

hearing by the city.

4 Brown, et al. v. City of Niota, No. 99-5749 No. 99-5749 Brown, et al. v. City of Niota, 9

Tennessee, et al. Tennessee, et al.

further action. The mayor did not receive the letter until that must be satisfied to establish that a plaintiff was deprived

February 17, 1998. By that time, the plaintiffs had filed a of a liberty interest entitling the plaintiff to a name-clearing

complaint against the city and its commissioners and the hearing:

mayor never responded to the plaintiffs’ request for a

hearing.1 On May 5, 1998, the district court granted First, the stigmatizing statements must be made in

defendants’ motion for summary judgment on all of plaintiffs’ conjunction with the plaintiff’s termination from

federal claims and declined to exercise its supplemental employment. . . . Second, a plaintiff is not deprived of his

jurisdiction over plaintiffs’ state law claims. The plaintiffs liberty interest when the employer has alleged merely

timely appealed. improper or inadequate performance, incompetence,

neglect of duty or malfeasance. . . . Third, the

II. Discussion stigmatizing statements or charges must be made public.

Fourth, the plaintiff must claim that the charges made

Plaintiffs contend that the district court erred in finding that against him were false. Lastly, the public dissemination

the defendants were entitled to summary judgment on the must have been voluntary.

plaintiffs’ claims that they were deprived of their property and

liberty interests without due process of law by the termination 123 F.3d at 410 (internal citations omitted). Once a plaintiff

proceedings conducted by the board of commissioners. This has established the existence of all five elements, he is

court reviews a district court’s decision to grant summary entitled to a name-clearing hearing if he requests one. Id.

judgment de novo. See Soper v. Hoben, 195 F.3d 845, 850 Both plaintiffs argue that statements made by the

(6th Cir. 1999). If there are no material factual disputes and commissioners during the board meeting infringed on their

the moving party is entitled to judgment as a matter of law, liberty interests in their reputations. In particular, plaintiff

we will affirm the district court’s judgment. See Fed. R. Civ. Brown points to statements regarding the shoving incident

P. 56(c). In reviewing the defendants’ summary judgment with Mike Cardin and the discussion of other undisclosed

motion this court must construe the evidence and make all prior incidents, while plaintiff Anderson directs our attention

inferences in a light most favorable to the non-moving party. to the board’s statement he was involved in a conflict of

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 interest. Plaintiffs contend that these statements “create[d] a

S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). false and defamatory impression . . . in connection with

[their] termination.” Chilingirian, 882 F.2d at 205.

A. Property Interest Assuming that the board’s comments were stigmatizing and

that the plaintiffs were entitled to a name-clearing hearing had

Plaintiffs argue that they had a property interest in one been denied, we still do not believe that the plaintiffs

continued employment with the City of Niota. Because the were deprived of their liberty interests without due process of

board dismissed them from employment without notice and law. Because the city did not receive notice of the plaintiffs’

an opportunity to be heard prior to the effective date of desire for a name-clearing hearing prior to the initiation of

this lawsuit we believe that the district court was correct in

granting summary judgment in favor of the defendants. At

1 the time this complaint was filed, the plaintiffs had not

The plaintiffs’ complaint was filed the same day that the mayor

received the letter, March 17, 1998. The plaintiffs filed their complaint suffered a deprivation of their liberty interest without due

in the afternoon and the mayor did not receive her mail until the early

evening.

8 Brown, et al. v. City of Niota, No. 99-5749 No. 99-5749 Brown, et al. v. City of Niota, 5

Tennessee, et al. Tennessee, et al.

If we were willing to accept the plaintiffs’ argument that the termination they contend that they were denied due process of

board’s rule on termination creates an employment contract law. See Board of Regents v. Roth, 408 U.S. 564, 570 n.7, 92

between the city and the plaintiffs, the plaintiffs still cannot S.Ct. 2701, 2705 n.7, 33 L.Ed.2d 548 (1972) (“Before a

establish that they had a property interest in continued person is deprived of a protected interest, he must be afforded

employment because this contract does not provide a definite opportunity for some kind of a hearing.”). Plaintiffs base

term of employment. Tennessee courts have held that “[t]he their property interest on an employee rule promulgated by

law is well established in this state that a contract for the board. This rule states that “[a] city employee may be

employment for an indefinite term is a contract at will and can terminated for any just cause at the discretion of the board.”

be terminated by either party at any time without cause.” Plaintiffs contend that this statement modified their

Bringle v. Methodist Hosp., 701 S.W.2d 622, 625 (Tenn. Ct. employment at-will and established a contractual right to

App. 1985); see also Graves v. Anchor Wire Corp., 692 termination only for just cause.

S.W.2d 420, 422 (Tenn. Ct. App. 1985). While the Reed

court found that the employee handbook created a contract To establish a claim for deprivation of property without due

and restricted the employer from terminating the employee process of law, plaintiffs must establish that they had a

without just cause, the handbook also created a contract for a property interest in continued employment with the city.

definite time period. The employee handbook in Reed

provided that the employment relationship would be for a “Whether a property interest exists is not determined by

term of one year to be renewed annually unless the employee reference to the Constitution; rather, property interests

voluntarily resigned or was terminated for just cause. 4 are ‘created and their dimensions are defined by existing

S.W.3d at 688. Because the plaintiffs have pointed to no rule rules or understandings that stem from an independent

or regulation that defines the duration of the contractual source such as state law – rules or understandings that

relationship between the city and its employees they have not secure certain benefits and that support claims of

rebutted the presumption that they were employees at will. entitlement to those benefits.’”

The plaintiffs did not have a protected property interest in

their continued employment with the city; therefore, we Ludwig v. Board of Trustees, 123 F.3d 404, 409 (6th Cir.

affirm the district court’s decision to grant defendant’s motion 1997). Tennessee has long recognized the doctrine of

for summary judgment on plaintiffs’ property interest claim. employment at will, with the mutual right of either party to

terminate such a relationship with or without cause. See

B. Liberty Interest Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn.

1988). Plaintiffs acknowledge this doctrine, but argue that

Plaintiffs also argue that they had a liberty interest that was their at-will employment was modified by the city’s

violated by the defendants during the January 12, 1998, board promulgation of the rule governing the termination of city

meeting. “[A] person’s reputation, good name, honor, and employees. “Under Tennessee law, what would otherwise be

integrity are among the liberty interests protected by the due an at-will contract may be modified by specific language

process clause of the fourteenth amendment.” Chilingirian v. which evidences an intent to modify the existent employment

Boris, 882 F.2d 200, 205 (6th Cir. 1989). A deprivation of contract.” Shelby v. Delta Airlines, Inc., 842 F. Supp. 999,

any of those interests “must be accompanied by notice and an 1006 (M.D. Tenn. 1993). Plaintiffs contend that the rule

opportunity to be heard to refute any charges against that modifies their employment and prohibits termination without

person.” Id. In Ludwig, this Circuit identified five elements just cause.

6 Brown, et al. v. City of Niota, No. 99-5749 No. 99-5749 Brown, et al. v. City of Niota, 7

Tennessee, et al. Tennessee, et al.

While plaintiffs are not incorrect in arguing that at-will Reed court announced a high standard for establishing the

employment can be modified by language evidencing an existence of an employer’s specific intent to be bound by the

intent on the part of the employer to modify the employment terms of an employee handbook and that the plaintiffs have

relationship, we do not agree with the plaintiffs that the not satisfied this standard.

employee rules and regulations promulgated by the Niota

board evidence the city’s intent to modify the employment The rule concerning employee termination contains the

relationship. We accept the plaintiffs’ contention that these language that the board of commissioners “may” fire a

rules and regulations, like employee handbooks, could modify employee for any just cause. The term “may” is permissive

an employment relationship. Tennessee courts have and suggests that there are other permissible means for

“recognized that an employee handbook can become a part of terminating a city employee. In cases where Tennessee courts

an employment contract.” Rose v. Tipton County Pub. Works have found an employment contract to exist, the employee

Dep’t, 953 S.W.2d 690, 692 (Tenn. Ct. App. 1997). “In order handbook contained the mandatory terms “shall” and “will.”

to constitute a contract, however, the handbook must contain See, eg., Williams v. Maremont Corp., 776 S.W.2d 78, 80-81

specific language showing the employer’s intent to be bound (Tenn. Ct. App. 1988) (finding the language “employees will

by the handbook’s provisions.” Id. We do not believe the be recalled in the order of seniority” to be binding) (emphasis

language of these rules and regulations shows the specific added); Hamby v. Gensco, Inc., 627 S.W.2d 373, 376 (Tenn.

intent of the city to be bound by their terms. Ct. App. 1981) (holding that the statement contained in the

employee handbook that “these shall be The Guaranteed

In Reed v. Alamo Rent-A-Car Inc., 4 S.W.3d 677, 688 Policies, Practices and Procedures” created a contractual

(Tenn. Ct. App. 1999), the Tennessee Court of Appeals held relationship) (emphasis added). In addition, the rule identifies

that an employee handbook could modify an at-will certain acts2 as grounds for discharge; however, these acts are

employment agreement to require the employer to dismiss the characterized as examples of grounds for discharge leading to

employee only for just cause. Prior to this decision, the inference that they are not the exclusive bases for

Tennessee courts had held that terms of employment, like terminating city employees. In Ogburn v. Gas and Water

benefits, could become contractual through the operation of Dep’t, No. 01A01-9702-CH-00056, 1997 WL 528812, at *4-5

the employee handbook, but they had never held that an (Tenn. Ct. App. Aug. 27, 1997) (unpublished), the court held

employee handbook could convert an at-will employment that the use of “may” in the city charter did not limit the city

agreement into a protectible property interest. See Gregory v. from following other methods to terminate employees. We

Hunt, 24 F.3d 781, 785-87 (6th Cir. 1994) (discussing this believe that Tennessee courts would hold that the language of

phenomenon). The Reed court, however, limited its holding the board’s employee rules and regulations does not evidence

to those cases where the handbook contains “unequivocal the clear intent to create a property interest in continued

language demonstrating [the employer’s] intent to be bound employment with the city.

by the handbook’s provisions.” In particular, the court stated

“we can conceive of no clearer way for an employer to

express its intent to be bound by a handbook’s provisions than

the employer’s specific statement that the document 2

The policy statement provides:

represents the parties ‘entire agreement of employment’ and A city employee may be terminated for any just cause at the discretion of

that the employer ‘promises and agrees to abide by all its the board. Examples are:

terms and conditions.’” 4 S.W.3d at 688. We believe that the A. Failure to perform duties according to job description.

B. Failure to meet attendance requirements.