Opposition Brief — City of Cathedral City v. Hoesterey

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FILED

r7, APR 28 1992

No. 91-1387 OFFICE OF THE CLERK

In The

Supreme Court of the United States

-_—

—

October Term, !991

THE CITY OF CATHEDRAL CITY; JACK R. SMITH,

Petitioners,

VS.

PAUL R. HOESTEREY,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit °

RESPONDENT'S BRIEF IN OPPOSITION

RUSSELL L. DAVIS

Counsel of Record

Atiorney for Respondent

75-005 Country Club Drive

Suite A

Palm Desert, California 92260

(619) 341-1040

1952

[utz °N,J (908) 257-6850°(800) 3 APPEAL*NY (212) 840-4640°MA (617) 342-1114

pellate DC (202) 783-7288*PA (215) 925-65G0*USA (800) 5 APPEAL

Aprinters.ine.

QUESTION PRESENTED

Should this Court review a decision regarding the time when

- a cause of action accrues for denial of procedural due process

in violation of 42 U.S.C. § 1983 where the decision was reached

primarily on the particular factual circumstances of the case and

no conflict among the circuits exists?

il

TABLE OF CONTENTS

Page

Question Presented .......o.. 6: 2ss5555 555s eee eee i

Table of COMtentS .....c0s0ssencnss ed es ene eee ene ananas ii

Table of Citations. ...56.5s0000eee see kee ee ii

Statement of the Case ....s50scsapeuee cvbueune eae eeess l

Reasons for Denying the Wiel oa. ss +4 oxen cane ckesseas 7

I. The decision of the lower court followed Supreme

Court precedent but the result differed by reason of

the underlying facts. Thus, the question presented for

review is primarily factual and presents neither a

special nor important issue for review. .......... 7

II. There is no conflict among the circuits. ......... 11

Conclusion 000000400 0a60 5 ERE USSSA Eee oe aes 14

TABLE OF CITATIONS

Cases Cited: :

pean v. Kennedy, 416 U.S. 134 (1974) ............... 13

Chardon v. Fernandez, 454 U.S. 454 (1981).......... Pe Me)

Cleveland Board of Education v. Loudermill, 470 U.S. 532

ae

ii

Contents

Re Re, DOD Wied, SE CUDOTP oss sen cascncsace 6, 10

Delaware State College v. Ricks, 449 U.S. 250 (1981)

heer, Cees vaca ele «ce Caan ewes 7, 8, 9, 11

Peer a tay ican k Ks 7 Re ee a

Holden v. Commission Against Discrimination, 671 F.2d 30

(Ist Cir. 1982), cert. denied, 459 U.S. 843 (1982) ..11, 12

Kessler v. Board of Regents, 738 F.2d 751 (6th Cir. 1984)

ee ee a Ete eeeeeee vawt's 12, 13

Rubin v. O’Koren, 644 F.2d 1023 (Sth Cir. 1981), upon

rehearing of 621 F.2d 114; 738 F.2d 751 (1984)..... 13

Statutes Cited:

aaa od 466 64a p88 050405464 RON 8 OO 7

ee dace tak kok BAERS KORDA SD i

rr On i wa sik nseseeesneusucas 7

APPENDIX

Appendix A — Excerpts from Complaint Hoesterey v. The

City of Cathedral City, et al., from the Superior Court

of the State of California in and for the County of

Riverside, Case No. Indio 52029, Filed November 30,

No. 91-1387

In The

Supreme Court of the United States

October Term, 1991

THE CITY OF CATHEDRAL CITY; JACK R. SMITH

Petitioners,

vs.

PAUL R. HOESTEREY,

Respondent,

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The petition contains perceived misstatements of fact and

law. Therefore, respondent sets forth the following statement of

the case to correct the misstatements of fact. The misstatements

of law will be addressed in the reasons why the petition should

be denied.

Respondent, Hoesterey, was the Assistant City Manager of

petitioner, City of Cathedral City. (Opp. App. la, 412). According

to City’s Personnel Rules, which were adopted as a City Ordinance,

Hoesterey was a nonprobationary employee. (Opp. App. la, 411).

Because he had a vested property interest in his employment,

Hoesterey could not be terminated without cause. (Opp. App.

la 410, and Complaint Ex. A, Personnel Rules, p. 2, (III[1] and

p. 3, ¢VI[6] Pet. App.). According to the due process safeguards

found in the Constitution, if the City wanted to terminate him,

it would have been required to provide Hoesterey with reasons

for the termination and an opportunity to be heard.

For his own personal reasons, the City Manager of Cathedral

City, petitioner Smith, wanted to discharge Hoesterey as early

as 1985. However, since there was a lack of cause to justify a

termination, the City Manager began employing manipulative

tactics in an effort to induce and coerce Hoesterey to voluntarily

submit his resignation. In January, 1985, the City Manager told

Hoesterey that he no longer needed an Assistant City Manager.

Moreover, the City Manager misrepresented the truth by telling

Hoesterey that the position of Assistant City Manager was going

to be abolished. To further induce a resignation, the City Manager

told Hoesterey that it was time to ‘‘spread your wings and fly

for the good of your career.’’ (Pet. App. Fl, 415).

Petitioners misrepresented the facts to this Court in the second

paragraph of page 11 of their petition wherein they state that

‘*Paragraph 15 of the Complaint alleges that Hoesterey was told

as early as January, 1985, that he would be discharged without

any Opportunity to respond to charges, since the only reason for

the discharge was that it was time for him ‘‘to spread [his] wings

and fly for the good of [his] career.’’ To the contrary, Paragraph

15 contains the reference to a discharge without an opportunity

to be heard. (Pet. App. Fl, 415). Paragraph 16 of the complaint

refers to the City Managers statements as a ‘‘Proposed

eae mee |

Termination.’’ (Opp. App. 2a, 416).

One year later in January, 1986, the City Manager again

started to pressure Hoesterey for a resignation and requested that

it be submitted by June, 1986. Hoesterey failed to submit his

resignation. Continuing his efforts to induce a voluntary

resignation, the City Manager, in late October, 1986, told

Hoesterey that he better have another job by December 1, 1986

because Hoesterey could not continue in his position beyond that

date. (Pet. App. Fl, 417).

Petitioners, in their statement of the case, state that

Hoesterey’s complaint alleges that the October, 1986, oral

statement by the City Manager to Hoesterey was a summary

termination and constituted notice that the employment would

terminate effective November 30, 1986 (Petition, p. 3-4). To the

contrary, no such allegation of a summary termination can be

found in Hoesterey’s complaint.

Petitioners have taken a single paragraph out of context to

form a pretext. The oral statement by the City Manager to

Hoesterey in October, 1986 was clearly intended to mean that

since Hoesterey could not be terminated without cause, and since

Hoesterey failed to submit his resignation after the exertion of

the earlier pressures brought about by the City Manager, the City

Manager was increasing the pressure by stating that unless

Hoesterey in fact resigned by December |, 1986, he would be

unlawfully terminated. (Pet. App. Fl, 4415 & 17).

It is important to emphasize the City Manager had no legal

authority to discharge Hoesterey without cause. Therefore, in a

final effort to avoid an unlawful termination, the City Manager

threatened that if the resignation was not forthcoming within the

allotted time, Hoesterey would be wrongfully discharged regardless

of the legal consequences. (Pet. App. Fl, 4415 & 17). Further,

the City Manager expressly or impliedly threatened that if

Hoesterey did not voluntarily resign, the City Manager would

ensure that Hoesterey did not receive a favorable employment

recommendation. (Pet. App. Fl, 417 & Opp. App. 2a, 421).

More importantly, the facts set forth in the complaint do

not indicate nor imply, as the petition states on p. 4, that the

oral statements by the City Manager in October, 1986 had any

finality to the decision. The oral statements were essentially

conditional upon whether Hoesterey refused to voluntarily submitt

his resignation by December 1, 1991.

Because the October, 1986 threat appeared to be more serious

than the previous ones by reason of the close proximity and

definiteness of the decision date, Hoesterey prepared a draft of

a Severence Agreement that he had hoped would prevent the City

Manager from destroying his career by providing unfavorable

employment recommendations to future employers. In or about

November, 1986, Hoesterey attempted to obtain the City

Manager’s signature on the agreement. (Pet. App. F2, 419).

The Severance Agreement was excecuted on Friday,

November 28, 1986, the day after Thanksgiving when all City

offices were closed. (Pet. App. F7). Hoesterey refused to resign

until the City Manager at least signed the Hoesterey prepared

Severance Agreement. After making numerous changes, the City

Manager executed the document which effectively terminated

Hoesterey’s employment as of November 30, 1986. (Pet. App.

F2, 919 & F6, 41).:

In or about April, 1987, approximately four months after

the effective date of termination, Hoesterey discovered that his

job in fact had not been eliminated as had been previously

represented by the City Manager. The falsity of the City Manager’s

representations were discovered by Hoesterey when applications

for the positon were being solicited by the City Manager. (Opp.

App. 2a, 422 & 3a, 423).

It is significant to note that the City functioned under an

unconstitutional City ordinance. Enacted by the City Council,

the Personnel Rules did not require the City to provide written

notice to an employee prior to discharge. Nor did the City

ordinance require City to provide a due process hearing for

nonprobationary employees. Instead the ordinance merely

provided that a discharged employee could obtain a hearing by

appealing the City Manager’s written order of dismissal. But the

City Manager was not required to provide the written notice. (Opp.

App. 3a, 424).

Nonetheless, Hoesterey filed an appeal for a hearing with

the City Council on October 10, 1987 after unsuccessfully

attempting to win back his job by submitting an application when

applications were solicited. The City Council refused to grant

Hoesterey’s request for a hearing and notified Hoesterey of its

decision on October 28, 1987. (Opp. App. 3a, 426).

If Hoesterey’s cause of action accrued on or after November

28, 1986, the complaint was timely filed on November 30, 1987.

This is so because November 28, 1987 fell on a Saturday thus

rendering timely the filing on the following Monday, November

30, 1987. (Judicial Notice).

The petitioners’ statement of the case properly describes the

procedural route in the lower courts up to the present time except

for the needed clarification which follows in the next few

paragraphs.

The question raised by Hoesterey before the Ninsh Circuit

was whether the period of limitations for denial of a due process

hearing in the employment context commenced on (a) the date

ae

of the initial notice of taking, (b) the last day of employment,

or (c) the taking became final.

Upon appeal from the district court, the Ninth Circuit

reversed the lower courts decision to dismiss the complaint. The

appellate court, citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)

based its review on the contents of the complaint, the allegations

of which they accepted as true and construed in the light most

favorable to Hoesterey. (Pet. App. A6).

Construing the allegations in the complaint in the light most

favorable to Hoesterey, the Ninth Circuit panel held that there

was insufficient indication that the ‘‘termination decision’’ in

October, !986, was final and would be accompanied by no further

process. The court stated, ‘‘Nothing in the complaint suggests

that Hoesterey was informed or should otherwise have known

that he would receive neither such notification nor a pretermination

hearing. Only when Hoesterey’s employment was actually

terminated, on his last day of work, did he know that he would

receive no written notice or pretermination hearing.” (Pet. App.

A9).

Accordingly, the Ninth Circuit reversed the district court on

the basis of the underlying facts.

REASONS FOR DENYING THE WRIT

I.

THE DECISION OF THE LOWER COURT FOLLOWED

SUPREME COURT PRECEDENT BUT THE RESULT

DIFFERED BY REASON OF THE UNDERLYING FACTS.

THUS, THE QUESTION PRESENTED FOR REVIEW IS

PRIMARILY FACTUAL AND PRESENTS NEITHER A

SPECIAL NOR IMPORTANT ISSUE FOR REVIEW.

The decision of the lower court is entirely consistent with

the Supreme Court cases cited by petitioners. Petitioners argue

that the decision of the court below which held that the limitations

period commenced on the last day of employment, is as a matter

of law contrary to the decisions rendered by this Court in Delaware

State College v. Ricks, 449 U.S. 250 (1981), and Chardon v.

Fernandez, 454 U.S. 454 (1981). We disagree and contend that

the lower court decision is entirely consistent with these cases.

Although a contrary result was reached, it was only because of

a difference in the underlying facts.

At the outset, it should be noted that there is a significant

difference between the case at bar and Ricks in that the latter

did not involve a permanent employee entitled to due process.

Ricks was a nontenured college professor who had no right to

continue in his job. Prior to the end of his employment contract,

Ricks was notified that he was being denied tenure. On the date

that Ricks was formally notified that tenure would be denied,

he was offered a ‘‘terminal contract’’ which allowed him to

continue to teach for an additional year in a nontenured capacity.

Ricks, a black Liberian, challenged his denial of tenure by the

college as a discriminatory act in violation of 42 U.S.C. § 1981

and 42 U.S.C. § 2000, ef seq.

The issue before the Ricks Court was whether the period of

limitations commenced when Ricks was formally notified of the

denial of tenure or at the end of his terminal contract. Ricks alleged

that he was discriminated against when tenure was denied. No

further unlawful acts were alleged to have ocurred subsequent

to the communication of the formal decision to deny tenure.

In order to resolve the issue, the Ricks Court first sought

to identify the unlawful employment practice. The only unlawful

employment practice complained of was the denial of tenure. Thus,

it was the denial of tenure that constituted the alleged

discrimination. The Court, therefore, held that the period of

limitations for an action based on discrimination for denial of

tenure accrued when the decision became final and was

communicated to Ricks.

Ricks is entirely consistent with the case at bar. The University

made a formal decision to deny tenure and this decision was final

and unequivocal. Consequently, the cause of action had its

inception the moment that final decision was communicated to

Ricks. Therefore, the Court was correct in holding that the end

of the terminal contract had no legal significance with respect

to the commencement of the statute of limitations unless there

was a continuing violation. In the instant case, there was a

constructive discharge and the termination did not become final

until the last day of employement.

Chardon v. Fernandez, supra, involved a case similar to Ricks.

Like Ricks, Fernandez was also a nontenured employee who

claimed he was discriminated against by the denial of tenure. The

issue was whether the limitatiens period should commence when

the denial of tenure was communicated to Fernandez or on the

last day of employment. Although Fernandez argued that he was

discriminated against, he attempted to distinguish his case from

Ricks by alleging that the unlawful employment practice was the

termination of employment rather than the earlier date when he

was formally notified that tenure was denied.

The Fernandez Court looked beyond the allegations and

found the case indistinguishable from Ricks. Dissecting the facts,

the Court isolated the denial of tenure as the unlawful employment

practice. In other words, the alleged discrimination took place,

if at all, the moment Fernandez was notified of the denial of

tenure. The subsequent termination of employment had no legal

significance in terms of the underlying cause of action as the cause

of action had already matured. Consequently, the Court held that

the statute of limitations began when the formal decision was

final and communicated to Fernandez rather than the last day

of employment. 454 U.S. at 8.

In the case at bar, the lower court held that there was neither

a formal nor final decision to terminate prior to November 28,

1986. Nor can it be said that the oral statements made by the

City Manager to Hoesterey in October, 1986, either expressly or

impliedly constituted a final and unequivocal decision to terminate.

Nor do the facts indicate or even suggest that as of October, 1986,

Hoesterey would be deprived of a due process hearing if he were

terminated.

This case involves a constructive discharge. Thus, an oral

statement at the whim of the City Manager which was part of

a series of theretofore unsuccessful attempts to induce a resignation

can hardly be classified as a formal and final decision. A

reasonable person would think that a statement to be considered

formal and final should at least be in writing. Moreover, for the

statute of limitations on the denial of the due process hearing

to commence on or about October, 1986, the written notice should

contain an unequivocal statement that Hoesterey would not have

an opportunity to be heard on his discharge.

|

10

None of these factors are present in this case. Instead, the

October, 1986 statement made by the City Manager to Hoesterey

was in substance conditional. The City Manager knew that he

lacked the legal authority to discharge Hoesterey without cause.

Therefore, the October, 1986 statement was nothing more than

another attempt to elicit a resignation from Hoesterey. The

statement could only have been reasonably interpreted to mean

that either Hoesterey voluntarily resign by the designated date

or the City Manager would unlawfully discharge him. We do not

acutally know what the City Manager would have done had

Hoesterey decided not to resign.

The point is that there was neither formality nor finality to

the City Manager’s oral statement. Nor was there any unequivocal

statement that Hoesterey would not receive an opportunity to be

heard if he did not resign. The understanding of a reasonable

person in such a case would be that unless and until there was

a discharge, there would be no right to a hearing.

In fact the actual discharge did not take place until at least

November 28, 1986 when the City Manager successfully coerced

Hoesterey to resign. It was on that date that the Severance

Agreement was negotiated and executed. This was when the

decision to terminate actually became final. Therefore, based on

the facts of the case at bar, the decision of the Ninth Circuit was

correct in holding that there was no final termination in October,

1986.

This Court has held that ‘‘a complaint cannot be dismissed

for failure to state a claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’’ Conley v. Gibson, supra, at

45-46. In the instant case, it cannot be said that Hoesterey can

prove no set of facts beyond any doubt to support his claim. The

opposite seems to be quite apparent. Moreover in a statute of

11

limitations question, unless the action is clearly barred by the

allegations set forth in the complaint, it is improper for the court

to decide the issue as it is a function reserved for the jury.

Cases where a party disagrees with the application of the

facts to the law are neither special nor important enough to warrant

a review by this Court. This Court should not grant the petition

for writ of certiorari.

il.

THERE IS NO CONFLICT AMONG THE CIRCUITS.

Nor does the decision below conflict with any of the appellate

decisions cited by petitioners. For example, in Holden v.

Commission Against Discrimination, 671 F.2d 30 (ist Cir. 1982),

cert. denied, 459 U.S. 843 (1982), the plaintiff received notice on

May 3, 1973 that she would be discharged from her job effective

on August 31, 1973. Holden filed a complaint with the Equal

Employment Opportunity Commission and subsequently received

a right to sue letter.

The question decided by the First Circuit was whether the

six month statute of limitations commenced on (a) the date Holden

was notified of the discharge; (b) the date Holden received her

right to sue letter from the EEOC; or (c) the date on which the

state agency employing her declined jurisdiction of Holden’s

complaint (Holden, supra, 34).

Relying on Ricks, supra, and Chardon, supra, the Holden

court held that the date of the wrong is the date of the advance

notice in section 1983 cases. Thus, the court held that the statute

of limitations began on May 3, 1973, the date Holden was notified

of the discharge.

12

There is no inconsistency in Holden and the case at bar. In

Holden the notification of discharge was deemed final. Therefore,

the limitations period began on the date of notification. In the

instant case, the facts do not even remotely suggest that the

October, 1986 notice was final and unequivocal. In a constructive

discharge case, it is difficult to hold that the employee knows

or has reason to know that the decision is final until the actual

date when employment terminates. Thus, the cases can be

distinguished on the facts.

In Kessler v. Board of Regents, 738 F.2d 751 (6th Cir. 1984),

by contrast, the court confronted the time of accrual of a due

process claim but the decision of the Sixth Circuit squarely supports

the Ninth Circuit’s decision, rather than conflicting with it. Thus,

Kessler received notice of termination from her employer, the

University of Tennessee, on August 29, 1980. On June 30, 1981,

the Board of Regents notified her that it found no basis to reverse

the decision of the Chancellor.

Numerous violations were alleged by Kessler in her suit that

was filed on August 30, 1982. In applying the one year statute

of limitations, the court held that all of the violations complained

of occurred more than one year prior to the filing of the complaint.

Kessler also contended that she was deprived of a due process

hearing after she was terminated. Kessler claimed that since sh.

had a constitutionally protected right to her job and did not receive

a pretermination hearing, she was entitled to a posttermination

hearing. The court agreed that she was entitled to a posttermination

hearing but held that the deprivation of her due process rights

had occurred, not when the decision to terminate became final,

but on a subsequent date (June 30, 1981) when the Board of

Regents notified Kessler of its decision to uphold the Chancellor’s

final determination. Thus, the one year limitation period began

on the subsequent date. Since more than one year had elapsed

13

between June 30, 1981 and August 30, 1982, the date her suit

was filed, the court held that the cause of action for denial of

a due process hearing was time barred.

Kessler is similar to the case at bar in that both parties alleged

a violation of due process in that the employer failed to provide

a hearing.

What commenced the cause of action in Kess/er was the

notification by the Board of Regents to Kessler that it was

upholding the Chancellor’s determination. In the case at bar,

petitioners argue that Hoesterey received final notice of termination

in October, 1986, and that Hoesterey should have known that

petitioners were not going to provide him with a pretermination

hearing. Alternatively, according to Kessler, Hoesterey’s cause

of action for denial of a posttermination hearing should not accrue

until City denied his appeal for a hearing which was about ten

months after the last day of employment. In either event,

Hoesterey’s complaint was timely filed.

Accepting petitioners’ contention as correct for argument’s

sake, Hoesterey would have still been entitled to a posttermination

hearing within a reasonable time after the taking. Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 546-548; and Arnett

v. Kennedy, 416 U.S. 134 (1974); Kessler v. Board of Regents,

supra; and Rubin v. O’Koren, 644 F.2d 1023 (Sth Cir. 1981), upon

rehearing of 621 F.2d 114; 738 F.2d 751, 755 (1984).

Assuming the termination was final and unequivocal in late

October, 1986, as opposed to the last day of employment,

Hoesterey’s cause of action for denial of a due process hearing

could only be time barred if forty-six days after notice of

termination is deemed an unreasonable time to provide Hoesterey

with a posttermination hearing. (Hoesterey’s complaint was filed

one year and no more than fifteen days after the late October,

1986 oral notification.)

14

The only conflict cited by petitioners is the district court case

of Garland v. Shapiro, 579 F. Supp. 858 (E.D. Mich. 1984);

however, that is scarcely the sort of disagreement among the lower

courts that warrants review by this Court at this time.

A conflict among the circuits does not exist and this Court

should not grant the petition for certiorari.

CONCLUSION

The decision rendered in this case by the Ninth Circuit is

totally in accord with the legal precedent established by this Court.

Nor is there a conflict among the circuits on this issue as petitioners

would like to believe. The plain fact is that the decision below

is totally logical and consistent with all appellate cases that have

addressed the issue. Should a true conflict develop at some time

in the future, this Court may see fit to clarify the positions. At

the present time, there does not appear to be such a need.

Accordingly, this case lacks the significance and importance

to justify review by this Honorable Court.

Respectfully submitted,

RUSSELL L. DAVIS

Attorney for Respondent

la

APPENDIX A — EXCERPTS FROM COMPLAINT

HOESTEREY V. THE CITY OF CATHEDRAL CITY, ET AL.

FROM THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA IN AND FOR THE COUNTY OF RIVERSIDE

CASE NO. INDIO 52029, FILED NOVEMBER 30, 1987

Paragraph 10 — First Cause of Action

10. Under Article VII, Section 6 of the Personnel Rules of

Defendant City of Cathedral City, the City Manager could only

dismiss a ‘‘regular employee’’ of the City for just cause. (A true

and correct copy of the Personnel Rules are attached hereto as

Exhibit A, except the period required to become a Regular

Employee was amended since plaintiff began employment to

provide for a twelve (12) month probationary period as opposed

to six (6) months.)

Paragraph 11 — First Cause of Action

11. Six (6) months after July 12, 1982, plaintiff completed

his probationary period whereupon plaintiff became a Regular

Employee and acquired a property right in the continuation of

his employment.

Paragraph 12. — First Cause of Action

12. During the course of plaintiff’s employment, plaintiff

was an excellent worker with an outstanding record of dedication,

loyal and efficient service and contribution to the goals of

defendant City of Cathedral City as well as to plaintiff’s immediate

supervisor, defendant Smith. In or about July, 1983,

approximately one year after plaintiff’s starting date, defendant

City of Cathedral City promoted plaintiff to the position of

Assistant to the City Manager. In or about July, 1984,

approximately one year after the first promotion, plaintiff was

2a

Appendix A

again promoted to the position of Assistant City Manager.

Paragraph 16 — First Cause of Action

16. After being informed by defendant Smith of the proposed

termination, plaintiff, though reluctant to leave, began looking

for a position as Assistant City Manager or City Manager in

various other towns.

Paragraph 21 — First Cause of Action

21. The discharge of the plaintiff from his position as

Assistant City Manager was accompanied by an express or implied

threat that defendant Smith would give plaintiff a favorable

employment recommendation and cause plaintiff’s personnel

record to indicate resignation only if plaintiff did not protest the

termination. Defendant Smith’s actions and conduct constituted

coercion, undue influence and duress thereby causing plaintiff

to reluctantly accept the termination and seek a comparable

position in public administration in another city.

Paragraph 22 — First Cause of Action

22. In or about April, 1987, defendants began soliciting

applications for the position of Assistance City Manager. By letter

dated May 11, 1987, plaintiff submitted his application for the

position of Assistant City Manager. On May 14, 1987, the

Secretary to defendant Smith, acknowledged plaintiff’s interest

in the position, informed plaintiff that the list was being narrowed

to fourteen (14) finalists and advised plaintiff that ‘‘it is unlikely

you will be invited as one of the finalist (sic);’’

3a

Appendix A

Paragraph 23 — First Cause of Action

23. In or_about August, 1987, plaintiff discovered that

: defendant City of Cathedral City hired an Assistant City Manager

as of July 27, 1987.

Paragraph 24 — First Cause of Action

24. Article VIII, Sections 1 & 2 of defendant City of

Cathedral City’s Personnel Rules (Exhibit A) allow a dismissed

employee to file an appeal to the City Counsel within ten (10)

days of receipt of a written order of dismissal from the City ~

Manager.

Paragraph 26 — First Cause of Action

26. On October 10, 1987, plaintiff timely filed an appeal of

his dismissal to the City Council. Even though the ten (10) day

period for filing a notice never began to run because plaintiff

never received a written order of dismissal from the defendant

City of Cathedral City, the City Clerk of the defendant City of

Cathedral City, on October 28, rejected plaintiff’s appeal and

refused to bring the matter before the City Council.

Paragraph 35 — Second Cause of Action

35. The provision for a post-termination hearing for

dismissed employees as set forth in the Personnel Rules did not

meet the minimum safeguards to satisfy the requirements of

procedural due process as the plaintiff’s termination was not

preceded by (a) written notice of defendant’s proposed action;

(b) the reasons therefor, (c) a copy of the charges and materials

upon which the defendant’s actions were based; and (d) the right

to respond either orally or in writing.