*1 WATT, C.J., HODGES, plea2 employer's which is rested on the acts LAVENDER, KAUGER, misrepresented SUMMERS and to have are said her BOUDREAU, JJ., implicitly lulled her into false concur. security.22 sense of ¶ 17 WINCHESTER, HARGRAVE and JJ., ¶ 13 dissent. accordingly We hold that the claimant (a) judge's is entitled trial finding of dispositive fact and conclusion law of her of (b)
tolling plea employer oppor and the tunity proof against to re-elicit its claimant's
efforts to toll the statute.23
IV
judge authority had to determine whether employer's operated actions in contest Supreme Court of Oklahoma. 48(A) toll the time limit. The basic fair April22, 2003. evidentiary ness of proceedings conducted resulting and of the claim's denial were ad
versely judge's affected the trial errone perception
ous controlling principles opportunity A press law. full-scale tolling plea the claimant's and to offer the employer's proof opposition to that
quest parties' is the due. granted upon On certiorari the claim petition,
ant's Appeals' Court of Civil opinion judge's and the trial order are vacat ed; the claim pro is remanded for further
ceedings to be in a conducted manner consis today's pronouncement. tent with argues Employer that if compensation the claim is remand- 23. After a order is vacated and the tolling dispute, ed for consideration it cause remanded, claim stands before the trial opportunity should afforded an to locate the though tribunal adjudicated it had never been (who supervisor longer employed is no at the before, course, except, legal ques for those plant) precise wording and to ascertain of his tions that came appellate to be settled statements to claimant, his intention at the time pronouncement. George Failing E. Co. v. Wat perception were made as well as his kins, 76, ¶ 12, 57; 2000 OK. 14 P.3d Adams v. understanding claimant's of what he said and Anadarko, 52, ¶ 1949 OK 210 P.2d feasible, lastly, appropriate offer his testi- Swart, Seymour 152. See in this connection mony postremand hearing. at a 9, ¶ 8, 22. McClenahan, ¶ 0, note 2, at supra syl.
$43 *4 McGuire, Anderson, R. Kent Philip W. OK, Appellants. City, for Oklahoma OK, Goralewiez, City, Oklahoma Richard J. Edmond, Murdock, City of T. Stephen and Edmond, OK, Appellees.
OPINION
WATT, Justice. Viee Chief appeal in this questions dispositive 1 The in- (1) have a Appellants Did are: rank as Ser- employment and in their terest deprive (2) so, Appeliees If did geants? due and violate of that them demoting without them erroneously trial court hearing? Did judg- were entitled City and Cochran hold all answer law? We matter of as a ment We reverse affirmative. questions summary judg- granting order trial court's Edmond in favor ment Cochran, and remand of Police Chief trial court. I. Negligence c. breaching duty - Appellants properly to administer the writ- PROCEDURAL BACKGROUND ten examinations and assessment centers Timothy Barnthouse, T2 Ray Ancel Scott in accordance with their policies own Teel, II, Fees and James (Appellants) Dallas procedures; police Appellee, City officers for the contract; d. Breach of employment Edmond. Their subject to a e. Intentional infliction of emotional dis- (CBA), bargaining agreement collective be- tress; and
tween the and the Fraternal Order of Negligent f. infliction of emotional dis- Police, Lodge (F.O.P.), gov- No. 186 which is tress. Act, erned the Fire and Police Arbitration (the FPAA). seq., 00.98.1991 51-101 et They sought damages each in excess of 30, 1998, July Appellant On pro- Fees was $10,000.00. Sergeant, moted to and on October T8 Cross summary judgment motions for Appellants Teel and pro- Barnthouse were were filed. The trial Appel court denied Sergeant. April moted to Effective partial lants' motion for summary judgment they writing by City's were notified in Chief granted by City motions filed Police, Appellee Cochran, Dennis appeal Cochran. brought pursuant being previous "demoted" to their rank. to Supreme 1.36, Court Rule Accelerated They grievances filed in accordance with the Procedure Summary Judgments and Cer grievances CBA. The were denied Coch- *5 Dismissals, 0.8.2001, tain App. Ch. 1.1 F.O.P., ran they and the and filed this action Appellants they contend appealing only in against City Cochran, district court and granting the orders Appellees' motions for individuallyand as Chief of Alleging Police. summary judgment. However, they parties protected property had a interest in responses refer evidentiary and their employment continued matters Sergeants being Appellants' and in not attached to cause, partial motion demoted without Appellants summary following judgment. Therefore, sued for the claims: the issues a. raised therein are process Violations of their due considered to the rights, extent necessary.
under the 14th Amendment of the Consti- States, tution of the § United and Art. Constitution;
of the Oklahoma II. b. Relief § under 42 U.S.C. 1983 for de- FACTUAL BACKGROUND priving Appellants of their constitutional rights pursuant City's policies Appellants part and a took promotional in the them; deliberate choice to demote process for Sergeant, the rank of which is error, petition Appellants In their raised six F.O.P. when Appellants it demoted without 1. appeal: issues on cause. filing 1. Whether grievance of a formal qualified Whether Cochran is entitled to police against a municipality officer a for not immunity where Appellants' his conduct violated properly conducting promotional process a pre- right (a process to due right), and police vents other promoted officers from that right that was violated Cochran when it was process obtaining property interest in the clearly established at the time of his conduct that promoted rank were to. Appellants protected property had a interest hearing Whether the resulting arbitration sergeant their rank of right and had a to due Appellants' provided any protection demotions process deprivation before and after of their rank Appellants' of property interest in their rank sergeant by City. Cochran and the sergeant. 6. Whether the trial court abused its discre- 3. Whether the arbitrator of an arbitration entering judgment tion City Appel- for the on hearing, Appellants partic- where were denied contract, lants' claims of breach negligence, ipation hearing, authority such has intentional infliction of emotional distress and City deprive direct Appellants of their negligent infliction of emotional distress where property sergeant interest in the rank of without summary judgment did not move for on due and to violate their process, contractual claims, legal these authority no evidence rights, were provide remedy order to for another support judgment, offered in grievance. of such and officer's where regarding factual issues Whether the these claims breached remain. the Collective Bargaining Agreement between the and the violated, protect in that their al were examination a written comprised of employment in their interests time, property ed At the center". "assessment oral process, due taken without rank were process, Detective. was rank alleged Ap- They also contrary to 1983.4 in an culminated July ended rights not contractual pellees breached promotions candidates "eligibility list" In Cochran's cause. without in to be demoted the candidates ranks The list Sergeant. he raised de summary judgment, motion for scores, Appellants' of their overall order immunity Appellants' as to qualified fenses positions.2 top four among the names claim, employee Dill, immunity as officer, part took § 1983 Dennis Another of the under Governmental the bottom political subdivision ranked at was process, but party anot and that he was Act Tort Claims pro not receive list and did eligibility con Appellants' breach as to to the CBA August grievance on filed a He motion. summary City's motion for claim. In tract in which manner of the complaining the invalid selection judgment, it contended An arbi conducted. was center assessment making promotions, invalidated on December hearing was held tration initio; inter property no that ab them void the arbitrator February 1999. On process; selection a result of the arose as He est grievance. Dill on in favor of held in a proce exists no that conducted was center the assessment ruled the burden dure; Appellants bear and that resulting eligibility list improperly, exists. property interest that a proof center" invalid, the "assessment argument as adopted Cochran's also process must promotional portion § 1988. under defense qualified the Arbitra undisputed that It is repeated. Appellants mention ruling did not tor's finding or recommen
name, include did not TIL in promotions were Appellants' dation DISCUSSION must Appellants valid, order and did not Nevertheless, serving as after be demoted. issue, consider we threshold As a *6 year, Appel than one more Sergeants for Ap Cochran argument of the writing by Cochran in were notified lants pursuing in CBA to follow the failed pellants 2000,3 they be were April that, effective their failing to exhaust thus grievance, their Dill arbitration of the a result ing demoted Following their under the CBA. remedies they must advised They also were award. grievance demotions, filed their Appellants center, next assessment participate the denied After Cochran May 2000. pro They not receive they did did. F.O.P., which to the it submitted grievance, was pro a result of Sergeant as to motions Appellants 2000. on June it denied which Appel the although two of process, motional proceeding grievance the pursue did not Sergeant. promoted to been have since lants grievance. denied the F.O.P. when to Coch contended, response in their They for motion alleged in their Appellants T5 constitution, judgment, summary ran's motion judgment summary partial any subjected, citizen subjects, to be three", or causes pro- City can the "Rule of 2. Under the person the within or other States the United names on first three from the the officers mote any deprivation of to the occur, jurisdiction thereof the oth- promotions eligibility As list. the by the secured immunities rights, privileges, or up list. move the names er to the be liable laws, shall Constitution law, equity, in suit injured an action party Sergeant, Appellant Fees served At the rank of redress, except proceeding proper other or Appel- April July from judicial brought against a any action that in from October served Barnthouse Teel and lants such taken in omission act or for an officer April injunctive shall capacity, relief judicial officer's declaratory was decree granted unless be not (Supp.1996). Civil action § 1983 42 U.S.C. declaratory unavailable. relief or violated deprivation of section, any Act of this purposes of the For exclusively the District statute, Congress applicable who, any color of Every person under be a statute be considered custom, shall any of Columbia ordinance, usage, of regulation, or Columbia, of Columbia. the District Territory or the District State or they prohibited were from continuing the (4) composed shall be members, of four process grievance because their did not con- two of which shall be by selected the Chief disciplinary cern a agree. action. We designate Police or through impar- tial, random choice from a list of available T7 grievance procedure The is covered rank, supervisory officers with and two of Article 10 of the provides CBA. Section 10.8 which shall be impartial, selected ran- any that the employee may "F.O.P. or file a dom choice aggrieved the employee(s). grievance" "[glrievances and that shall be The Chief of aggrieved Police and the (15) em- presented within days fifteen calendar ployee(s) (7) shall have seven calendar said occurrence or after the F.O.P. becomes days to select fact-finding the aware committee. of said occurrence". pro- Section 10.5 findings The and recommendations of vides the manner in this grievances which will be committee presented must be processed. reached and Step In aggrieved employ- the to the (15) Chief of Police present ee shall within fifteen grievance to his or her days calendar supervisor, immediate the time of the selec- who makes a decision parties,. tion of all ... writing days. within seven calendar It provides: emphasized T10 The language Step aggrieved STEP 1. employee(s) shall purports to allow employee present grievance to the immediate grievance determined invalid the F.O.P. supervisor. It shall writing be reduced to However, sentence, the preceding "If the citing provision provisions of this grievance is grievance deemed valid then the Agreement alleged violated, to have been proceed will to the step", next implies the signed by aggrieved employee(s). grievance ends at step this if the F.O.P. finds supervisor immediate shall make their it is Considering invalid. these sentences (sic) writing decision in employee to the together, interpret provision we to mean (7) within days seven calendar of the date grievance that the will Step end at 2 if the presentation grievance. grievance F.O.P. finds the is invalid unless it Step T8 If grievance, does not settle the disciplinary action; involves a does, if it it aggrieved employee Step follows employee continues pursues it provides: further. Any interpretation other would render grievance paragraph STEP 2. If ambiguous. is not It un- settled disputed aggrieved STEP in this employee(s) Appellants case that shall were present grievance disciplinary demoted for F.O.P. Griev- reasons. Under ance Committee language above, within seven clear calendar noted given no options days further of the date of the under the CBA supervi- immediate *7 response. sor's The F.O.P. when the grievance. Grievance F.O.P. denied Ac- cordingly, Appellants did exhaust their ad- Committee will make a determination as to validity (15) ministrative remedies under the CBA. the grievance of the within days. calendar grievance If the is deemed grievance
valid then the proceed will IV. step. next concerning Grievances filed disciplinary may ALLEGED PROCEDURAL DUE processed by actions be employee regardless the PROCESS VIOLATIONS of the F.O.P. ruling. Grievance Committee's [Empha- ¶ 11 two-step A inquiry is neces supplied.] sis sary to determine plaintiff whether a was Step 9 provides: procedural (1) denied process: due did the STEP 8. The F.O.P. Grievance possess Committee individual protected a interest aggrieved or the employee(s) present shall process which protection due applicable? was grievance the (2) to the Chief of Police within and given was the individual an appropri seven days calendar of the date of process? the ate level of Hennigh See v. of Shawnee, 1249, (10th Grievance 155 F.3d Committee's - - determination. Cir. The 1998). Chief of griev- Police shall refer the allege To a procedural violation of ance to a fact-finding committee which due rights, plaintiff must demon-
$47 legitimate Plaintiff a gave The CBA tion. property legitimate aof existence the strate aas employment continued expectation of He employment. in his liberty interest or City found "cause the "legitimate unless must be lieutenant There nnigh, at shown." at Id. employment", continued of expectation Roth, 408 v. Regents 1253, citing Board case, ¶ 14 of Article instant In the LEd2d 92 S.Ct. U.S. 7.1(f) provides: the CBA of section proper legitimate The existence spe- except as otherwise Employer, The determined is employment right ty Agreement, in this cifically provided at Hennigh, law. to state reference itself, without unto reserves and retains Wood, citing Bishop v. authority, limitation, rights, powers, all (1976). Hennigh was a L.Ed.2d upon conferred duties, responsibilities and employment whose police officer demoted of the by the laws in it it and vested the Oklahoma a CBA governed States of the United constitutions Appeals Court 10th Cireuit FPAA. Oklahoma, the Statutes State stated, page 1253: Oklahoma, and the Charter State or statutes state Further, has held rights, court all Edmond. restrictions place substantive regulations exercised ordinarily in and are vest ability to make actor's government aon remain to and are reserved by employers decisions, employeehas then personnel including but Employer, in the vested Camp See interest. property protected foregoing generality of the limited to (10th Mercer, F.2d bell rights: managerial following statute, regu Cir.1991) ("For example, if a reasons restricts lation, ... policy or demote, transfer, and dis- (£) discipline, To shown,' 'just cause discharge to then cause, subject to charge employees em to continued right employee has rights set out procedure grievance are or causes grounds until such ployment falls action if such in Article herein omitted)). (internal quotations shown." grievance. the definition within ¶ 12 analysis is used same [Emphasis supplied.] property protected is a if there determine in property of a evidence 15 Additional status, employment particular in a interest rank is employment and Appellants' terest regulation statute If a as rank. such Order, Policy City's General found on the discre restrictions places substantive Revised, June effective GPO 83-2 provid employee, such tion to demote Promotion". Process for "Selection entitled imposed for may only be discipline ing that V, that candidates under Section provides, It created. cause, then a placed on are Center the Assessment Ken citing Williams Hennigh, at year. "At full for one eligibility list Cir.1994). (6th tucky, 24 F.3d Eligi Promotional period the this time end of interpret longer holdings no prior expire and shall on its bility Based List shall this the decisions probationary ing provides Oklahoma -It also used." ends recently promoted officer for a FPAA period concerning matters Court5 time, concern, promotion the He year. At that of statewide after one matters *8 Revised, ef held, 86-1 permanent. GPO at 1255: nnigh becomes Court "Department 22, 1998, entitled June fective inter- property legitimate had [Pllaintiff Actions", demotions provides Disciplinary was property interest his rank. est in im may be and terminations7 6 the form of the by state created cause. posed for legisla- to state CBA, pursuant contracted employee to a may an demote Police Chief of Employees Relations Bethany v. Public 5. be will not grade. demotion 4; Such rank or lower Bd., n. 904 P.2d OK rank employee in a lower any permanent if made Employees Relations Bd., v. Public Tulsa demotion. of the a result laid off as will be OK approv- Employment-Upon 7. 11. Termination designated Grade Rank Demotion to 6. 10. may of Police Manager, Chief the Manager, al of the the approval the Cause-Upon ¶ 16 case, In eligibility this the list was which itself falls short of standards derived completed July on or about and had from the Due Process Clause." [Citations expired the ruling before Arbitrator's was omitted.] February time, issued on 2000. At that Hennigh, 155F.3d at 1256. "invalid"; the list could not be held it no Hennigh, prior 18 In demotion, to his the longer Further, existed. under the terms of plaintiff given had been hearing informal itself, the incorporates CBA which Okla before the Review Board. City Manag The FPAA, homa's an employer's discretion to er plaintiff also allowed and his counsel an employees demote is restricted to demotions opportunity respond to to allegations the be for cause. Hennigh, Under the CBA and the imposing fore discipline. The federal Court Policy noted, General Appel Orders we hold Appeals process held this level of met "the possess lants did protected property inter pre-termination standard for a employment est in their and rank. hearing." Id. at Additionally, the Court stated plaintiff the rule that a "is not step As to the second of the entitled pre-termi- to an extensive or inquiry, formal we Appellants consider whether re Rearing nation adequate there post- appropriate ceived an level process of due procedures." Id., termination prior citing deprivation to protected Benavi of the in (10th dez Albuquerque, 101 F.3d Hennigh, terest. In the Court determined Cir.1996) [Emphasis supplied].8 The Court although plaintiff protect did have a noted other cireuit generally courts ed hold that employment in his grievance procedures rank, in a bargain his collective he nevertheless had appro received ing agreement satisfy can plaintiff's entitle priate process. due Hennigh plaintiff The post-deprivation ment to process. due complained procedural process his due Court held that the grievance CBA's proce were violated because discipline provided dures Hennigh imposed adequate comply did not with the CBA's re post-deprivation remedy. quirement complaints, notarized Appeals Court of stated: 119 In Hennigh, plaintiff given However, opportunity, the Constitution does not re- was, however informal it to quire that each pro- individual receive the answer complaints against him before his guarantees provided cedural demotion. opportunity That was bolstered instrument which a property bestows in- Hennigh's post-demotion grievance pro- terest ... The Due Process Clause of the ceeding, under the procedures, CBA United States Constitution entitles each adequate were deemed by the Appel- Court. citizen to notice opportunity and an present lants in the case received neither prior heard deprivation of a funda- "extensive" nor pre-demotion "formal" due right mental ... This court stated [al process; pre-demotion received no due failure comply with state proce- or local process. fact, In their fate was decided requirements dural necessarily does not following others hearing they could not constitute a process; denial of due case, attend. In Appellants this also re- alleged violation ceived no benefit procedure must result in a adequate post-demo- any permanent temporary terminate employee case, ent his side procedures of the for cause. post-termination hearing become much more important pre-termination ... and where the City employees subjected drug testing minimal, has been employee's fate pre-termination terminated hearing. after a Be- may depend entirely upon post-termination pre-termination procedures cause the were ex- contrast, hearing ... In employee when the tensive, post-termination procedure was less meaningful has had a opportunity explain important satisfy process. due The Tenth Cir- position challenge pre- his dismissal in cuit Court held: proceedings, termination importance [Slimilarly, we must evaluate the constitution- *9 procedures post-termination hearing the is ality post-termination of process light great. not as pre-termination procedures it follows. City Albuquerque, v. Benavidez 101 F.3d at of pre-termination When the process offers lit- opportunity tle or no employee pres- for the
$49 conduct violated the defendant's was show grievance because proceedings tion clearly established was the law law and that were not herein Clearly, Appellants denied. Pueblo alleged occurred. violation when of due level appropriate afforded Centers, Inc. at 647. Health Neighborhood interests. property protect their the trial court legal one for question is The resolve, should court's decision and the v. it relied and upon which identify the law LIABILITY COCHRAN'S Id. conclusion. for its the basis state ¶ 20 that as contends Cochran $21 move for defendants When liability for official, immune he is public qualified of grounds summary judgment on the doctrine under § 1983 claim Appellants' forward must "come immunity, plaintiff v. Fitz immunity". In Harlow "qualified of that allegations to show both facts or 73 102 S.Ct. 457 U.S. gerald, alleged violated conduct the defendant's (1982), Su States United 396 LEd.2d clearly established the law was and that law objective test adopted preme Court v. Pallottino occurred." the violation when qualified the doctrine whether determine (10th Rancho, 31 F.3d City Rio offi government applies When Health Cir.1994), Neighborhood citing Pueblo functions, discretionary performing cials Losavio, Ctrs., supra at 646. Unless Inc. v. their conduct liable for held they will not be made, pre showing the defendant is such "clearly estab violate actions unless Ctrs., Neighborhood Health vails. Pueblo rights of statutory constitutional or lished Losavio, plaintiff If estab at Inc. v. have person would a reasonable which matters, a defendant these both of lishes 818, 102 at Fitzgerald v. Harlow known."- as the movant burden the normal bears examine will The court at 2738. S.Ct. ma "showing that no summary judgment the defendant's the time of it at law as was defeat remain that would of fact terial issues alleg the law whether actions to determine immunity." Id. qualified or her claim Id. clearly established. was edly violated applied to determine is objective standard An convincingthe plaintiff has the burden "clearly estab violated a defendant whether clearly established. that the law was court rights of statutory lished Centers, Inc., v. Health Neighborhood Pueblo would have person reasonable which (10th Cir.1988), citing Losavio, F.2d 642 847 F.2d Neighborhood, Pueblo known." Dist., F.2d County School Lutz v. Weld Cir.1986). (10th plaintiff 340, 342-43 that even contends Cochran identify estab more than must do constitutionally had some Appellants had allege it was and right in the abstract lished due protected right must be The "contours violated. "clearly attach, not so it was process would official a reasonable sufficiently clear that officials that reasonable such established doing vio what he is that understand would their conduct understood have an would say that not to right. This is lates v. citing Dill right", violated immu by qualified protected is action official Cir.1998). (10th He Edmond, 155 F.3d question has very action nity unless the re clearly established unlawful, it to contends ... but is held previouslybeen the Arbitra accept follow law the pre-existing quired him to light of say that in the it, agreed with he or not ruling, whether Anderson apparent." must be tor's unlawfulness Appeals' June Civil citing Court of 635, 107 S.Ct. Creighton, 483 U.S. v. Neal (1987), citing Mitchell opinion F.O.P. unpublished 97 L.Ed.2d 98,982. Edmond, number in case 105 S.Ct. Forsyth, guidance However, on Neal reliance Briggs, 475 Malley v. L.Ed.2d 411 involved Neal misplaced. this case L.Ed.2d U.S. an arbitration to enforce City's refusal raised, the court the defense Once by the filed grievance arising of a out award opportunity plaintiff must allow charge required his reinstatement. dis- Neal's panel overturned arbitration 9. The *10 involved, Here, however, before the Arbitrator. Cochran also asserts officer Neal. we are concernedwith whether Cochran's conduct of Appellants can not have a constitutionally demoting Appellants required was to enforce protected property position they interest in a arising arbitration award legally Dill's considered to have never held. grievance. He Appellants' pro- also contends ¶ 25 Appellants sustained their burden of nullity motions became a as a matter of law naming clearly right, prop established and that gave Appellants established erty rank, interest employment their protected no more than a interest in contin- through established federal law at employment, ued particular job not in a time, i.e., the Tenth Cireuit Court of rank. Appeals cases, Hennigh and Dill While motion, 23 In response to Ap Cochran's they are not Supreme cases, Oklahoma Court pellants Shawnee, cited Hennigh City both interpret cases Oklahoma law and were supra, Edmond, City and Dill v. supra.10 published opinions at the time of the demo These property cases established that a in tions. certainly Dill was City known to the terest in their employment continued was of Edmond and Chief of Police Cochran. It through conjunction created the CBA in with dealt with a virtually CBA identical to the law, Le., FPAA, state and that the same one at Moreover, issue herein. FPAA, analysis applicable rank, citing to their the which the and Cochran were famil requirement CBA's for "cause" "discharge, iar, requires them to follow the terms of the discipline" demote or employees. Therefore, CBA. responds Cochran with the claim that they contend, cited, under the cases he had except no choice to follow the Arbitra time, were in effect at the were entitled ruling. tor's position raises material process being due before demoted. factual issues: did Cochran have to demote Appellants in comply order to with the arbi ¶ 24 In Cochran's motion on this is award, tration thereby depriving them of sue, he Appellants contends that had a property interest and due property interest positions as ser rights, or was there an alternative method of geants, deny he did not them process. due compliance which complied also with the law Rather, he F.O.P., contends it was the and the CBA? Did disregard Cochran procedures CBA's and the Arbitrator which clearly established law at the time? In other responsible denying any them such words, differ, would reasonable minds or are alleged right. However, the arbitrator's different possible, inferences as to how to CBA, function is to enforee the protect not to implement ruling? We determine differ grievant. See ent possible, inferences are summary Branch, McDonald v. West judgment improperly granted was on this 284, 290-291, 1799, issue. L.Ed.2d which held "because an arbitra authority tor's solely derives from the con 126 If the subject materials to consider tract, ... may arbitrator not have the ation on a motion summary judgment authority Indeed, enforce 1988 ... when either disclose facts, controverted material rights guaranteed by § 1983conflictwith or, might reasonable minds reach different provisions of the bargaining agree collective conclusions even if the material facts are ment, the arbitrator must agree enforce undisputed, a motion summary judgment ment." Moreover, [Citations Green, should be Perry Ap denied. omitted]. pellants grievants were not whose case was 488-489. Although Appeals ultimately the Court of held Edmond and the police, gave fraternal order of property that Dill's change interest of his protected property rise to a interest in Plain- duty schedule was de trigger minimis and did not employment. tiff's agreement continued procedural process protection, due the Court did provided management could dis- hold a employment interest in his charge, discipline demote or employees "for Edmond, established. See Dill v. 155 F.3d Thus, cause." protected Plaintiff prop- had a (10th Cir.1998), 1193, 1207 which provides: erty being disciplined in not without case, contract, express In this the collec- cause. [Footnote omitted.] bargaining agreement tive between the
851
letters", they
the "demotion
lants received
VL.
they had
noth-
grievance because
lost
had no
LIABILITY
CITY'S
knowledge
grievance
of a
ing. Appellants'
summary judgment,
127 In its motion
more, did
by
employee, without
filed
another
property interest arose
City alleged that no
obligation
City's
to
satisfy
not
or Cochran's
City has
examination.
from an invalidated
demoting
give Appellants due
before
jurisdictions11
from other
cited several cases
them.
procedure is
invalidated
hold that an
which
if
Accordingly,
argued,
it is
ab initio.
void
¶ 30 municipality
"person"
is a
A
void, there was
process was
promotional
liability.
v.
purposes of
1988
Monell
no
property interest and
promotion, no
no
Serv.,
658,
436
98
Department
Soc.
U.S.
protection
under
entitlement
(1978). However,
2018,
¶ 31 Appellants although property policy raised Appel- the interests existed in maker in petition. City's employment, issue their In lants' re the law was not sponse Appellants' partial motion for sum established at demotions, the time of the mary judgment, argued it that the reduction Cochran was quali- entitled to the defense of rank, in Appellants' immunity. followed as a re fied This could also result in grievance, sult of by operation Dill's occurred judgment However, for Cochran. if Cochran law, f@ity. because of the Cochran Appellants' violated in argued F.O.P., procedures it was the C capacity, his official despite having quali- and the Arbitrator which Appellants denied fied in his capacity, individual the interests, any, if and that City the liable, could be although Cochran is clearly established required him to de immune. This cannot be determined from Appellants. Appellants mote argued Coch entered, the face of the orders and we must City ran and the failed to follow the CBA and reverse and remand. requiring GPO cause for demotions. Coch argued ran prevent that the GPO does not VIL. promotion being from voided. OTHER CLAIMS ¶ 32 Cochran initiated the General Finally, Appellants contended in their Policy in capacity Orders his as Chief of petition in error that the trial court abused Police. An inference arises that both entering its discretion in judgment Cochran, effect, argue policy the on their contract and They tort claims. con- City required Appellants' reduction in tend these claims were not included in their questions (1) rank. Fact arise as to: wheth summary motion for judgment and there are policymaker, er as a Cochran ordered the remaining factual issues on these claims. Appellants' City's demotions because pol However, their breach of contract claim was (2) icy required it; and whether the absence raised in their motion partial summary specific of a provision preventing GPO judgment, reply addressed promotion being justifies voided response. Also, Cochran's their negligence demotion of officers without a hearing under claim was by City, addressed response in its City's policy. Because the trial court's Appellants' partial motion for summary granting summary orders judgment were judgment, by City recast as a claim for the general judgments,13 findings without of fact "negligent deprivation property". law, or conclusions of and because these in possible ferences are evidence,14 under However, agree we that both the we do not exactly know what the trial court claims for the intentional and inflic- negligent 13. The content comply of the orders properly file-stamped, orders were and a Certifi- 0.$.2001 requirements 696.3(A). of 12 They Mailing, signed by cate of Dep- the Court Clerk's (1) caption, court, setting contain: forth the uty, respects, was filed. In all the court's orders designation names and parties, the file comprise judgment a final as to both defendants. instrument; (2) number and title of the a state- disposition ('"Defen- ment of the motion deposition Cochran testified in Appel- his Summary dant's Judgment Motion for hereby is lants were never and therefore, were promoted, sustained"), including a statement of the relief demoted, despite never his use of those terms in ("judgment awarded is entered for the Defendant correspondence to them. City of Cochran"); Dennis Edmond/Defendant signature and title of the court. The WINCHESTER, Justice, concurring were not raised emotional distress tion of part. part, dissenting summary judgment, although the motions remand, petition. On they were raised T1 The case at bar involves an action be resolved the trier issues must these against of Edmond and its Chief of fact. Police, Cochran, Appellee Dennis filed officers, herein,
police appellants who are ¶ 36 Summary judgment improper employed by Appellee Ap- of Edmond. subject pellants employmentis to a collective materials, evidentiary reasonable under the bargaining agreement governed by Fire conclusions from men could reach different Act, Arbitration codified at 11 Dept. Bank v. and Police facts. Indiana Nat. State ©.98.2001,§ seq. Appellants 51-101 et Services, P.2d Human Of *13 promoted sergeant to the rank of and subse- Clearly, summary judgment was im by quently writing Appellee in notified Coch- properly granted. they had ran been demoted their previous They grievances in ac- rank. filed VIIL bargaining cordance with collective
agreement, arguing they
property in-
had a
CONCLUSION
in
employment
terest
their continued
as ser-
geants and had been demoted without cause.
¶ 37
Appellants exhausted their
We hold
portion
majority's opinion today
The
of the
remedies under
the CBA.
administrative
appellants'
I
with which
take issue involves
in
They
protected
have a
against Appellee
under 42
claim
Cochran
employment
through
and rank
the CBA
§
here-
U.S.C. 1988. For the reasons stated
FPAA,
they
proce
were denied
and the
but
in,
respectfully
I
to section V of the
dissent
process prior to
demotions.
dural due
involving
majority's opinion,
lHabili-
Cochran's
jury
exist as to:
Material
issues of fact for
entry
ty.
uphold
I would
the trial court's
Appellants'
violated
whether Cochran
judgment
in
on this issue.
favor
Cochran
rights for
clearly established constitutional
¶
qualifiedimmuni
2 Cochran is entitled to
qualified immunity
purposes of his individual
Economou,
ty under Butz v.
(@)whether
claim;
§
defense to the
and
con
ran's
reliance
Neal
immaterial, given that
finding
Coch
OPALA, V.C.J.,
HODGES,
and
I
reliance on Neal was reasonable.
ran's
HARGRAVE,
KAUGER,
LAVENDER,
and
espoused
adopt
would
the rationale
JJ., concur.
for the Western
States District Court
United
Terrapin Leasing,
in
District
Oklahoma
WINCHESTER,
J.,
part,
concurs in
F.Supp.
Ltd. v. United
part.
States
dissents
(W.D.Okla.1978).
court,
addressing
That
BOUDREAU, JJ.,
immunity
applied
qualified
the issue of
SUMMERS
officers, which has been held identical
federal
dissent.
"It is the
grounds
immunity
applied
existence of reasonable
doctrine
in 42 U.S.C.
for the belief formed at the time and in
actions to
state officials
stated:
"...
the issue is not
light
cireumstances,
officers'
of all
coupled
with
belief,
good-faith
generally
they
affords
basis for
attitude
but whether
believed
they
acting
qualified fimmunity
accordance with the
...."
law...."
4 6 I would hold that Cochran had reasonable
Leasing,
Terrapin
In
Internal
grounds
Revenue
for the belief formed at the time and
agents
violating
Service
were accused of
light
cireumstances,
all
coupled
with
corporation's
rights under
the Fourth
good-faith belief,
comply
that he must
Fifth Amendments to the United States
Con
decision,
the arbitrator's
and that
this belief
upon
stitution when
levied
seized
affords him
qualified immunity.
a basis for
satisfy
alleged
certain automobiles to
un
today's majority
To the extent
opinion
paid
liability
corporation's
tax
presi
diverges
conclusion,
from this
I must dissent.
dent and sole owner. The court held that
SUMMERS, J., Dissenting
joined by
qualified immunity
the doctrine of
barred BOUDREAU,J.
any recovery against
the individual
IRS
¶ 1 I respectfully dissent for two reasons.
agents,
issues,
holding among other
that the
first,
important,
and most
is that
seizure
was not
bad faith or unreasonable
*14
appellate jurisdiction
Court exercises
over
accomplished
and was
under the instructions
appear
non-appealable
what
to be
I
orders.
attorney. Citing
of an IRS
a similar factual
further dissent because Cochran is entitled
situation that
occurred
the Tenth Cireuit
qualified immunity.
to
States,
Leasing
case of
Corp.
G.M.
v. United
¶ 2 I
(10th
Cir.1977),
request
would first
parties
Rhodes,
247-248,
1692,
T7 A
-
judgment"
par
summary adjudication
tial
appeal-
is not an
Qualified
immunity
is an
able order. Reams v. Tulsa Cable Televi
by government
from suit
perform
officials
sion, Inc.,
373, 376;
604 P.2d
ing discretionary functions "insofar as their
Inc.,
Lynn
v.
Hickey Dodge,
Allen
2001 OK conduct
does not violate
established
781, 789,
J.,
(Opala,
concurring).
statutory
or constitutional
of which a
us,
In the
principle
case before
this
means
person
reasonable
would have known."
that a cause
complete
of action must thus be
Britton,
574, 588,
v.
523 U.S.
Crawford-El
ly adjudicated on both the contract
(1998).
118 S.Ct.
judgment-the
cause of action
merged
ceases to exist.
judgment
action is
into the
and the cause
Liberty
See note 7
See also
Bank and Trust
of action ceases to exist. Johnson v.
infra.
State ex rel.
10,
2,
Rogalin,
836,
Co. v.
1996 OK
n.
Department
7, ¶ 9,
Safety,
Public
2000 OK
2
of
(a
838-839,
transaction
or occurrence
cannot be
334;
P.3d
Black v. Russell,
485,
OK
¶ 12,
claims).
into two
split
Clause,
and thus there is
sense which
Ward,
Lawmaster v.
125 F.3d
(10th
(no
Cir.1997), quoting,
any
action that violates that Clause
Garramone
the Romo,
(10th Cir.1996).
may
94 F.3d
how unclear
it
be that
matter
violation)
particular
action is
violates a
authority
But
there must be some
"on
clearly
right. Much the same
established
point" showing that the officials'conduct vio-
any
could be said of
other constitutional or
clearly
late a
established
Id.
right.
statutory
But
violation.
the test of
{12
opinion
of the Court concludes
"clearly
ap
established law" were to be
that
showing
Plaintiffs met their burden of
plied
generality,
at this level of
it would
right
pos
established
that
relationship
"objective legal
bear no
sessed a
in their
rank.
that
reasonableness"
is
touchstone of
opinion
pivotal
fails to
address
issue
_...
surprising,
Horlow.
It should not be
underlying both Plaintiffs' claim and Coch
therefore,
that
that
our cases establish
immunity-the
ran's
authority
defense
right
alleged
the officialis
to have violated
duty
the arbitrator and Edmond's
to follow
"clearly
must
been
have
established"
ruling.
Simply,
arbitrator's
the Court
particularized,
more
hence
rele
more
"right"
considering
focuses on a
without
vant,
right
sense: The
contours
corresponding "duty" of Cochran.
sufficiently
must
that a
clear
reason
opinion
13 The
of the Court states that
able official would
understand
promotional pro-
arbitrator ruled that the
doing
right.
what he is
violates
invalid,
ruling
cess was
but the
did not men-
say
This is not to
that an official action
finding
tion Plaintiffs and "did not include a
protected
qualified
un
Appellants'
pro-
or recommendation
very
question
pre
less the
action in
has
€4,
Slip Opn.
motions were invalid."
at
viously
unlawful,
Mitchell,
been held
see
(emphasis
original).
That
is true. But
supra, 472 U.S. at
n.
105 S.Ct. at
focusing
instead of
on what the arbitrator did
12;
say
n.
but
it is to
say,
let
us look what the arbitrator did
light
pre-existing
law the unlawful
actually say and what
those words mean:
apparent.
ness must be
I further find that as a result of the
Creighton,
Anderson v.
639-
significant contractual violations committed
(1987),
interpreting
Posey,
a contract. Harkrider v.
had chosen
ruling
not to follow the
of an
94, ¶ 11,
821,
arbitrator,
P.3d
827. The
OK
only
to be told
the trial court
(subsequently
affirmed
the Court of
Civil
promotion
arbitrator did not hold that
Appeals) that he had to follow the arbitra
process
merely
"invalid." He stated
ruling
right
tor's
whether
it was
or not.
process
promotion
nullity.
was a
Edmond,
(Okla.
83,932,
Neal v.
No.
impact
What
does this have on the Plaintiffs?
of
16, 2000),
denied,
Civ.App. June
cert.
October
provides
promotional pro
The contract
for a
17,2000.
pro
cess that
includes an examination and
vides that a certain number of officers will be
Generally,
courts refuse to review the
promoted
upon
ranking
based
within
merits of
arbitration award under collec
bargaining agreements.
tive
United Steel
process.
competing
are
officers
workers
pro
Enterprise
each other for a limited number
America v.
of
Wheel &
of
Corp.,
Car
U.S.
S.Ct.
placements.
particular place
motional
If a
(1960).
L.Ed.2d 1424
If an arbitrator is ar
ment
examination
associated
is a
guably construing
applying
the contract
too,
nullity-so
arguably,
any
contractual
acting
seope
authority,
within the
of his
promotions springing
process.
from that void
acting through
dishonesty
and not
fraud or
correct,
arguably
Cochran's actions were
arbitrator's
decision is enforced
word,
by use of that
I mean his actions were
Paperworkers
courts. United
Intern. Un
light
-
existing prece
reasonable in
of then
ion,
Misco, Inc.,
29, 38,
AFL-CIO v.
dent. The reasonableness of Cochran's ac
108 S.Ct.
98 LEd.2d 286
This
light
precedent
tions in
shows that he is
"Only
Court has said that
when the 'arbitra
immunity.
entitled to
infidelity
tor's words manifest an
to this obli
explained
One court has
that "there
gation' will courts refuse to enforce the
are two levels at which the
shield
award."
Yukon v. International
First,
operates.
particular right
must be
Ass'n
Firefighters, Local
Second,
in the law.
established
quoting, United
right applies
manner
which this
Enterprise
Steelworkers America v.
Wheel
apparent."
actions of the official must also be
Corp.,
& Car
atU.S.
And
Cochran's reluctance not to fol- First,
power
did the arbitrator have the
to
ruling
low the
objectively
arbitrator's
was
binding
issue a decision
stating
on Edmond
since,
very
case,
in
promotional process
reasonable
recent
that
he
and exam were
Cullison, 1993
Okla. v.
agreement mission
State
bargaining
The collective
void?
1069,
37,
1079;
Motors
inter-
850 P.2d
General
may include an
OK
grievance
that a
states
County
Equalization,
Board
v. Oklahoma
application
well as
pretation as
59,
233, 238-241, cert.
states
678 P.2d
The contract
1983 OK
by the contract.
created
1689,
denied,
909,
may make "recommenda-
466 U.S.
104 S.Ct.
that the arbitrator
(1984).9
arbitrator's decision.
part of the
tions" as
concept
A similar
oc
LEd.2d
ruling is
arbitrator's
that the
And it states
jurisprudence
where this
curs in contract
binding.
recognizes that
the conduct on one
Court
may
estoppel
create an
so that
party
Secondly, assuming that
the decision
party
comply
not
with a written
other
need
promotional
void the
the arbitrator
to
See, eg.,
Knittel v.
provision
a contract.
pow-
in excess of the arbitrator's
process was
Bank, Mooreland,
Security
1979 OK
State
itself
of the arbitrator
the decision
er-is
92,
legal
The common
593 P.2d
95-96.
opinionneces-
The Court's
void or voidable?
parties acting
good
faith
principle
is
it
sarily implies
former when
denies
attempting
compulsory
fulfill
obli
while
to
too, I
is
immunity. This
believe
Cochran
good-faith
gations
penalized
are not
for their
error.
conduct.
and the F.O.P.
of Edmond
concept
to
this
has
do with our
23 What
based
the arbitrator's order to be
considered
today
simply
controversy
this--the Court
bargaining
the collective
upon the essence of
"good faith" of
act
penalizes the
Cochran's
view,
pow
my
-In
an arbitrator's
agreement.
compulsory obli
attempting to follow the
bargaining agreement
to
er under
collective
ruling,
strikes a
gation of the arbitrator's
promotional exam
validity of a
review the
immunity.
qualified
purpose of
blow at the
exam void
power to declare the
includes the
Qualified immunity has been known as
applicants of that exam when
as to all
Scherer,
immunity.
"good
Davis v.
faith"
bargain
contracting parties to the collective
82 L.Ed.2d
U.S.
intent
ing agreement have a contractual
reason for this is
One
and the
power. The F.O.P.
create such
immunity
designed to shield officials
in this
thought that the arbitrator
of Edmond
reasonably anticipate
they could not
when
should
power,
such
and this Court
case had
liability.
give
would
rise to
that their conduct
parties intend
lightly
what the
not
cast aside
The official's
(2) grief and loss of companionship are recovery statutory items of wrongful action, death not elements of a claim or cause of malpractice. action for medical 47OK 1058; § Green, 0.8. 2001 Death of Lofton ¶ ELLIS, Ellis, David M.D. and Jane individ- 790, 793; 1995 OK 905 P.2d ually surviving parents and as and next ¶ Andrews, 224, 4, Crossett v. 1954 OK Ellis, deceased, friend of Daniel Parsons, Peti- 117, 118; P.2d Lone Star Gas Co. v. tioners, ¶ 497, 28, 32 OK 159 Okla. 19 369,376; P.2d GURICH, Judge The Honorable Noma D. (3) petitioners rely upon do not their men the District Court of Oklahoma tal or emotional conditions as an element County, District, al., Seventh Judicial et of their meaning claims within the of 12 Respondents. 2503(D)(8). § O.S. 2001 See Kraszewski v. 99,032 No. Baptist Oklahoma, Inc., Medical Center of 141, 1, n.2, OK 916 P.2d n. Supreme Court of Oklahoma. 2; Publications, Computer Welton, Inc. v. 6, May 50, ¶13, 732, 736; 7,May As Corrected (4) the self-executing terms of 76 0.8. ORDER 19(B) § provide legal grounds no Original jurisdiction assumed. Art. 7 compelling protected disclosure of con- finds, Okla. Const. The Court fidential information after or communications re- hearing, quired to be revealed the order under