Bolton v. City of Dallas TX

United States Court of Appeals

Fifth Circuit

F I L E D

In the December 7, 2006

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

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m 05-11141

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TERRELL BOLTON,

Plaintiff-Appellant,

VERSUS

THE CITY OF DALLAS, TEXAS,

AND

TEODORO BENAVIDES,

IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 3:04-CV-0501-K

______________________________

Before SMITH, BENAVIDES, and PRADO, in favor of the defendants, the City of Dallas

Circuit Judges. and its city manager, Teodoro Benavides.

Bolton sued under 42 U.S.C. § 1983, alleging

JERRY E. SMITH, Circuit Judge: that the city had terminated him from his po-

sition as Chief of Police in violation of the due

Terrell Bolton appeals a summaryjudgment process clause of the Fourteenth Amendment.

The district court concluded that Bolton show that (1) he had a property interest/right

lacked a constitutionally-protected property in his employment and (2) his termination was

interest in further employment with the Dallas arbitrary or capricious. Moulton v. City of

Police Department (“DPD”). Because Chapter Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)

XII, § 5 of the Dallas City Charter creates a (citing Honore v. Douglas, 833 F.2d 565, 568

constitutionally-protected property interest, (5th Cir. 1987)). Because the district court

we reverse and remand. We also conclude granted summary judgment based on its find-

that Benavides’s successful defense of ing that Bolton lacked a property interest in his

qualified immunity requires dismissal of Bol- employment, we address only the first prong.

ton’s claims against Benavides in his individual

capacity. Although public employees can be endowed

with constitutionally-protected property

I. interests in their employment,1 a property

Bolton served as an executive-rank officer interest is not incidental to public employment

of DPD for fifteen years and in August 1999 and must be located in an independent source,

was promoted from assistant chief to chief. In such as state law. Perry v. Sinderman, 408

August 2003 city manager Ted Benavides ter- U.S. 593, 601 (1972). “A property interest is

minated his employment. Benavides ac- created where the public entity has acted to

knowledges that the dismissal was not for confer, or alternatively, has created conditions

cause. Bolton claims the city charter mandates that infer [sic, imply?], the existence of a prop-

that he be restored to the rank and grade he erty interest by abrogating the right to

held before being appointed chief. terminate an employee without cause.” Muncy

v. City of Dallas, 335 F.3d 394, 398 (5th Cir.

II. 2003). A public entity can confer a property

We review a summary judgment de novo, interest in public employment through a local

applying the same standard as did the district ordinance. Bishop v. Wood, 426 U.S. 341,

court. Morris v. Powell, 449 F.3d 682, 684 344 (1976).2

(5th Cir. 2005), cert. denied, 2006 U.S. LEX-

IS 8734 (U.S. Nov. 13, 2006). All justifiable

inferences to be drawn from the underlying 1

Gilbert v. Homar, 520 U.S. 924, 928-29

facts must be viewed in the light most favor- (1997) (stating that “employees who can be dis-

able to the nonmoving party. Minter v. Great charged only for cause have a constitutionally pro-

Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. tected property interest in their tenure and cannot

2005). Summary judgment is appropriate be fired without due process”); Cleveland Bd. of

where the record demonstrates that there is no Educ. v. Loudermill, 470 U.S. 532 (1985).

issue of material fact and the moving party is 2

Under Texas law, home rule cities “may de-

entitled to judgment as a matter of law. Mar-

termine by charter whether employment in certain

tinez v. Bally’s La., Inc., 244 F.3d 474, 476 city offices is at will or continuous absent just

(5th Cir. 2001). cause for dismissal, and Texas courts will give ef-

fect to such charter provisions.” Henderson v. So-

III. telo, 761 F.2d 1093, 1096 (5th Cir. 1985) (citing

To succeed on a due process claim in the Ratliff v. City of Wichita Falls, 115 S.W.2d 1153

context of public employment, a plaintiff must (Tex. Civ. App.SSAmarillo 1938, writ dism’d),

(continued...)

2

removed from time to time, and in those in-

Bolton claims that Chapter XII, § 5 of the stances in which the removal is not for a cause

charter grants him a property interest in con- warranting dismissal, then the official will be

tinued employment. It states, reassigned within the department.” Id.

If the chief of the police department . . . Although the city points to language in

was selected to that position from the ranks Muncy indicating that § 5 serves primarily as a

of the police department and is removed limit on the city’s ability to retain former ex-

from the position on account of unfitness ecutives, id. at 399-400, it is evident that Mun-

for the discharge of the duties of the posi- cy does not control the instant case. Unlike

tion, and not for any cause justifying dis- the plaintiffs in Muncy, Bolton claims a prop-

missal from the service, the chief . . . shall erty interest not in his executive-rank position,

be restored to the rank and grade held prior but rather in continued employment at the rank

to appointment to the position, or reduced and grade held before his appointment to the

to a lower appointative rank. executive position. His argument does not

rely on the “unfitness for duty” language, but

DALLAS, TEX., CITY CHARTER ch. 12, § 5 rather on the “for any cause justifying dis-

(2006). missal” language. He asserts that § 5, by its

reference to “any cause justifying dismissal

We examined this section in Muncy, 335 from the service,” creates a property interest in

F.3d 394. In that case, two executive-rank continued employment.

DPD officers challenged demotions to the

highest-rank appointments they had held be- The plain language of the charter supports

fore receiving their executive appointments. Bolton’s reading. “If the chief . . . is removed

They contended that a myriad of sources, in- . . . not for any cause justifying dismissal from

cluding § 5, granted them a protected property the service,” tracks language that elsewhere

interest in their executive-rank positions. In has been found to create a property interest.3

examining § 5, we noted that “unfitness for The word “shall” implies that restoration to a

duty” is “a nebulous status which conceivably

could encompass political unsuitability or any

3

number of other reasons that fall short of the See Perry, 408 U.S. at 600-03 (holding that

property-interest conferring, termination-for- guidelines stating that an employee “may expect to

cause standard.” Id. at 399. We found this continue in his academic position unless adequate

particularly true given that the statute internal- cause for dismissal is demonstrated in a fair

ly defines “unfitness for duty” as “not for any hearing” create a protected property interest); Ai-

cause justifying dismissal.” Id. Interpreting ello v. United Air Lines, Inc., 818 F.2d 1196, 1199

(5th Cir. 1987) (finding a protected property inter-

the provision as a whole, we noted that it

est where an employee handbook “contained a pro-

“contemplates that high level officials will be vision that employees would be discharged only for

good cause”); United Transp. Union v. Brown,

694 S.W.2d 630 (Tex. App.SSTexarkana 1985,

2

(...continued) writ ref’d n.r.e.) (finding a protected property

and City of San Benito v. Cervantes, 595 S.W.2d interest where “the manual of working conditions

917 (Tex. Civ. App.SSEastland 1980, writ ref'd provides that no employee will be demoted without

n.r.e.)). good cause”).

3

lower rank and grade is mandatory.4 IV.

Benavides asserts in the alternative that any

Even if we were to look beyond the plain claims against him in his personal capacity

language, this interpretation makes sense. The should be dismissed because he is entitled to

chief of police is a political position, and a qualified immunity. Although the district court

chief might be removed for any number of did not address the qualified immunity claim,

reasons beyond his control. Through this Benavides asserted the defense in his answer

charter provision, Dallas is ensuring officers and raised it in this appeal, so we may address

with considerable length of service that ac- it.

cepting an unstable job will not force them to

forfeit their long tenure within the DPD. It re- Once a public official has raised the defense

flects a balance between the cty’s interest in of qualified immunity, the burden rests on the

attracting high quality applicants and its inter- plaintiff to rebut it.6 On a motion for summary

est in ensuring effective oversight of the of- judgment, the disputed facts to which the

ficers who fill executive positions. plaintiff points must be sufficient, if plaintiff’s

version is accepted, for a reasonable trier of

The city responds by claiming that the two fact to determine (1) that the defendant

grounds for removal in the charterSS“unfitness violated the plaintiff’s constitutional rights and

for duty” and “for cause justifying dismis- (2) that the violation was objectively

sal”SS do not exhaust the field of possible rea- unreasonable. See Fraire v. City of Arlington,

sons for removal of an executive officer. 957 F.2d 1268, 1273 (5th Cir. 1992). The

Although admitting that Bolton was not re- inquiry into reasonableness asks “whether

moved for cause, the city alleges that he was ‘[t]he contours of the right [are] sufficiently

discharged because his continued presence clear that a reasonable official would under-

would be “disruptive” rather than because he stand that what he is doing violates the right.’”

was unfit for duty, a reason for removal that Id. (citing Anderson v. Creighton, 483 U.S.

would not trigger § 5. We do not ascribe the

same talismanic significance to “unfitness for

duty.” The language that creates a property 5

(...continued)

interest is “not for any cause justifying dismis- under § 1983 because Bolton has not pointed to a

sal.” If a chief promoted from within the ranks policy or custom that violates his rights. Because

is not removed for cause, by the plain language the district court concluded that Bolton did not pos-

of the charter he must be restored to his sess a protected property right, it did not address

previous position.5 the factual disputes raised by the city or whether

the city’s policy or custom played a role in the

violation of Bolton’s rights. We leave these argu-

ments for the district court on remand. See San-

4

See, e.g., Valdez v. Cockrell, 274 F.3d 941, ders v. English, 950 F.2d 1152, 1159 n.13 (5th

950 (“The word ‘shall’ is mandatory in meaning.”). Cir. 1992).

5 6

The City raises alternative grounds for affirm- See Pierce v. Smith, 117 F.3d 866, 871-72

ance: that § 5 does not apply to Bolton, because he (5th Cir. 1997) (“We do not require that an official

was not selected chief from “the ranks of the demonstrate that he did not violate clearly es-

department” and that the city is immune from suit tablished federal rights; our precedent places that

(continued...) burden upon plaintiffs.”).

4

635, 640 (1987)). If reasonable public officials

could differ as to whether the defendant’s

actions were lawful, the defendant is entitled

to immunity. Malley v. Briggs, 475 U.S. 335,

341 (1986).

Although we now conclude that § 5 of the

Dallas City Charter creates a vested property

right in employment at a former rank for exec-

utive-level officials, this decision is not appar-

ent from Muncy. There we were considering

a due process claim in the context of demo-

tion, but we stated that executive rank officials

are “employees at will, and the city was free to

discharge them without cause.” Muncy, 335

F.3d at 402. If we are to respect the principle

underlying qualified immunity to the effect that

officials must be able reasonably to “anticipate

when their conduct may give rise to damages,”

we cannot hold an official liable for taking ac-

tion that was arguably supported by decisions

of this court. See Davis v. Scherer, 468 U.S.

183, 195-96 (1984). Bolton’s claim against

Benavides in his personal capacity must be

dismissed based on qualified immunity,

because reasonable public officials could have

differed on whether discharging Bolton would

violate his constitutional rights.

In summary, because the charter creates for

Bolton a constitutionally protected property

interest in further employment, the judgment is

REVERSED. Bolton’s claims against

Benavides in his individual capacity are

DISMISSED based on qualified immunity.

The remaining claims are REMANDED for

further proceedings not inconsistent with this

opinion.

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