Lead Opinion
delivered the opinion of the Court.
Aсting on the recommendation of the Chief of Police, the City Manager of Marion, N. C., terminated petitioner's employment as a policeman without affording him a hearing to determine the sufficiency of the cause for his discharge. Petitioner brought suit contending
The questions for us to decide are (1) whether petitioner’s employment status was a property interest protected by the Due Process Clause of the Fourteenth Amendment,
I
Petitioner was employed by the city of Marion as a probationary policeman on June 9, 1969. After six months he became a permanent employee. He was dismissed on March 31, 1972. He claims that he had either an express or an implied right to continued employment.
A property interest in employment can, of course, be created by ordinance, or by an implied contract.
On its face the ordinance on which petitioner relies may fairly be read as conferring such a guarantee. However, such a reading is not the only possible interpretation; the ordinance may also be construed as granting nо right to continued employment but merely conditioning an employee’s removal on compliance with certain specified procedures.
Under that view of the law, petitioner’s discharge did not deprive him of a property interest protected by the Fourteenth Amendment.
II
Petitioner’s claim that he has been deprived of liberty has two components. He contends that the reasons given for his discharge are so serious as to constitute a stigma that may severely damage his reputation in the community; in addition, he claims that those reasons were false.
In our appraisal of petitioner’s claim we must accept his version of the facts since the District Court granted summary judgment against him.
In Board of Regents v. Roth,
In this case the asserted reasons for the City Manager’s decision were communicated orally to the petitioner in private and also were stated in writing in,answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner’s interest in his “good name, reputation, honor, or integrity”
Petitioner argues, however, that the reasons given for his discharge were false. Even so, the reasons stated to him in private had no different impact on his reputation than if they had been true. And the answers to his interrogatories, whether true or false, did not cause the discharge. The truth or falsity of the City Manager’s statement determines whether or not his decision to discharge the petitioner was cоrrect or prudent, but neither enhances nor diminishes petitioner’s claim that his constitutionally protected interest in liberty has been impaired.
The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.
The judgment is affirmed.
So ordered.
Notes
He relied on 42 U. S. C. § 1983, invoking federal jurisdiction under 28 U. S. C. § 1343 (3). He sought reinstatement and back-pay. The defendants were the then City Manager, Chief of Police, and the city of Marion, Since the city is not a “person” within the meaning of the statute, it was not a proper defendant. Monroe v. Pape,
A three-judge panel of the Court of Appeals affirmed, with one judge dissenting,
“[N]or shall any State deprive any person of fife, liberty, or property, without due process of law . . . .” U. S. Const., Arndt. 14.
Article II, § 6, of the Personnel Ordinance of the city of Marion, reads as follows:
“Dismissal. A permanent employee whose work is not satisfactory over a period of time shall be notified in what way his work is deficient and what he must do if his work is to be satisfactory. If a permanent employee fails to perform work up to the standard of the classification held, or continues to be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the City Manager. Any discharged employee shall be given written notice of his discharge setting forth the effective date and reasons for his discharge if he shall request such a notice.”
In Perry v. Sindermann,
“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents v. Roth,
This is not the construction which six Members of this Court placed on the federal regulations involvеd in Arnett v. Kennedy,
“Under the law in North Carolina, nothing else appearing, a contract of employment which contains no provision for the duration or termination of employment is terminable at the will of either party irrespective of the quality of performance by the other party. By statute, G. S. § 115-142 (b), a county board of education in North Carolina may terminate the employment of a teacher at
“It is clear from Article II, Section 6, of the City’s Personnel Ordinance, that the dismissal of an employee does not require a notice or a hearing. Upon request of the discharged employee, he shall be given written notice of his discharge setting forth the effective date and the reasons for the discharge. It thus appears that both the city ordinance and the state law have been complied with.
“It further appears that the plaintiff held his position at the will and pleasure of the city.”
See United States v. Durham Lumber Co.,
In granting summary judgment for respondents, the Distriсt Court was required to resolve all genuine disputes as to material facts in favor of petitioner. Fed. Rule Civ. Proc. 56 (c); Arnett v. Kennedy, supra, at 139-140.
See Wisconsin v. Constantineau,
Indeed, the impact on petitioner’s constitutionally protected interest in liberty is no greater even if we assume that the City Manager deliberately lied. Such fact might conceivably provide the basis for a state-law claim, the validity of which would be entirely unaffected by our analysis of the federal constitutional question.
The cumulative impression created by the three dissenting opinions is that this holding represents a significant retreat from settled practice in the federal courts. The fact of the matter, however, is that the instances in whiсh the federal judiciary has required a state agency to reinstate a discharged employee for failure to provide a pretermination hearing are extremely rare. The reason is clear. For unless we were to adopt Mr. Justice BreNNAN’s remarkably innovative suggestion that we develop a federal common law of property rights, or his equally far-reaching view that almost every discharge implicates a constitutionally protected liberty interest, the
Dissenting Opinion
with whom Mr. Justice Marshall concurs, dissenting.
Petitioner was discharged as a policeman on the grounds of insubordination, “causing low morale,” and “conduct unsuited to an officer.” Ante, at 343. It is difficult to imagine a greater “badge of infamy” that could be imposed on one following petitioner’s calling; in a profession in which prospective employees are invariably investigated, petitioner’s job prospects will be severely constricted by the governmental action in this case. Although our case law would appear to require that petitioner thus be accorded an opportunity “to clear his name” of this calumny, see, e. g., Board of Regents v. Roth,
Paul v. Davis,
The Court purports to limit its holding to situations in which there is “no public disclоsure of the reasons for the discharge,” ante, at 348, but in this case the stigmatizing reasons have been disclosed, and there is no reason to believe that respondents will not convey these actual reasons to petitioner's prospective employers.
I also fully concur in the dissenting opinions of Mr. Justice White and Mr. Justice Blackmun, which forcefully demonstrate the Court's error in holding that petitioner was not deprived of “property” without due process of law. I would only add that the strained reading of the local ordinance, which the Court deems to be “tenable,” ante, at 347, cannot be dispositive of the existence vel non of petitioner’s “property” interest. There is certainly a federal dimension to the definition of “property” in the Federal Constitution; cases such as Board of Regents v. Roth, supra, held merely that “property” interests encompass those to which a person has “a legitimate claim of entitlement,”
These observations do not, of course, suggest that a “federal court is . . . the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” Ante, at 349. However, the federal courts are the appropriate forum for ensuring that the constitutional mandates of due process are followed by those agencies of government making personnel decisions that pervasively influence the lives of those affected thereby; the fundamental premise of the Due Process Clause is that those procedural safeguards will help the government avoid the “harsh fact” of “incorrect or ill-advised personnel decisions.” Ante, at 350.
The Court in Paul also ignored the clear import of Goss v. Lopez,
It is only common sense, to be sure, that prospective employers will inquire as to petitioner’s employment during the 33 months in which he was in respondents’ service.
The Court asserts that to provide petitioner with a post-deprivation hearing when the stigmatizing reasons become known during litigation “would penalize forthright and truthful communication . . . between litigants.” Ante, at 349. Of course, there are various sanctions under our judicial system to ensure that testimony is “forthright and truthful” without necessitating denial of petitioner’s due process rights. And I suppose the Court wоuld declare that according a discharged employee a postdeprivation hearing as soon as it is clear his former employer is stigmatizing his name when it communicates with prospective employers would similarly discourage “forthright and truthful” communication between employers in that situation. However, the purpose of the due process hearing is to provide petitioner a mechanism for clearing his name of a cloud that is not in fact “truthful.”
By holding that States have “unfettered discretion” in defining “property” for purposes of the Due Process Clause of the Federal Constitution, see ante, at 349-350, n. 14, the Court is, as my Brother White argues, effectively adopting the analysis rejected by a major
For example, petitioner was hired for a “probationary” period of six months, after which he became a “permanent” employee. No reason appears on the record for this distinction, other than the logical assumption, confirmed by a reasonable reading of the local ordinance, that after completion of the former period, an employee may only be discharged for “cause.” As to respondents’ personnel practices, it is important to note that in a department which currently employs 17 persons, petitioner’s was the only discharge, for cause or otherwise, during the period of over three years from the time of his hiring until the time of pretrial discovery.
Dissenting Opinion
with whom Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Black-mun join, dissenting.
I dissent because the decision of the majority rests upon a proposition which was squarely addressed and in my view correctly rejected by six Members of this Court in Arnett v. Kennedy,
Petitioner Bishop was a permanent employee of the Police Department of the city of Marion, N. C. The city ordinance applicable to him provides:
“Dismissal. A permanent employee whose work is not satisfactory over a period оf time shall be notified in what way his work is deficient and what he must do if his work is to be satisfactory. If a permanent employee fails to perform work up to the standard of the classification held, or continues to be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the City Manager. Any discharged employee shall be given written notice of his discharge setting forth the effective date and reasons for his discharge if he shall request such a notice.” (Emphasis added.)
The second sentence of this ordinance plainly conditions petitioner’s dismissal on cause — i. e., failure to perform up to standard, negligence, inefficiency, or unfitness to perform the job. The District Court below did not otherwise construe this portion of the ordinance. In the only рart of its opinion rejecting petitioner’s claim that the ordinance gave him a property interest in his job,
“It is clear from Article II, Section 6, of the City's Personnel Ordinance, that the dismissal of an employee does not require a notice or a hearing. Upon request of the discharged employee, he shall be given written notice of his discharge setting forth the effective date and the reasons for the discharge. It thus appears that both the city ordinance and the state law have been complied with.”377 F. Supp. 501 , 504 (WDNC 1973).
Thus in concluding that petitioner had no “property interest” in his job entitling him to a hearing on discharge and that he held his position “at the will and pleasure of the сity,” ibid., the District Court relied on the fact that the ordinance described its own procedures for determining cause, which procedures did not include a hearing. The majority purports, ante, at 345, and n. 8, to read the District Court’s opinion as construing the ordinance not to condition dismissal on cause, and, if this is what the majority means, its reading of the District Court’s opinion is clearly erroneous for the reasons just stated.
“In this case, as the District Court construed the ordinance, the City Manager’s determination of the adequacy of the grounds for discharge is not subject to judicial review; the employee is merely given certain procedural rights which the District Court found not to have been violated in this case. The District Court’s reading of the ordinance is tenable . . . .” Ante, at 347. (Emphasis added.)
The majority thus implicitly concedes that the ordinance supplies the “grounds” for discharge and that the City Manager must determine them to be “adequate” before he may fire an employee. The majority’s holding that petitioner had no property interest in his job in spite of the unequivocal language in the city ordinance that he may be dismissed only for certain kinds of cause rests, then, on the fact that state law provides no procedures for assuring that the City Manager dismiss him only for cause. The right to his job apparently given by the first two sentences of the ordinance is thus redefined, according to the majority, by the procedures provided for in the third sentence and as redefined is infringed only if the procedures are not followed.
This is precisely the reasoning which was embraced by only three and expressly rejected by six Members of this Court in Arnett v. Kennedy, supra. There a federal employee had “a statutory expectancy that he not be removed other than for 'such cause as will promote
“But the very section of the statutе which granted him that right . . . expressly provided also for the procedure by which ‘cause’ was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. . . .” Id., at 152.
The three Justices went on:
“Here the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest. . . .” Id., at 155.
Accordingly they concluded that the Constitution impоsed no independent procedural requirements.
This view was rejected by Mr. Justice Powell in an opinion joined by Mr. Justice Blackmun.
“The plurality opinion evidently reasons that the nature of appellee’s interest in continued federal employment is necessarily defined and limited by the statutory procedures for discharge and that the constitutional guarantee of procedural due process accords to appellee no procedural protections against arbitrary or erroneous discharge other than those expressly provided in the statute. The plurality would thus conclude that the statute governing federal employment determines not only the nature of appellee’s property interest, but also the extent of*359 the procedural protections to which he may lay claim. It seems to me that this approach is incompatible with the principles laid down in Roth and Sindermann. Indeed, it would lead directly to the conclusion that whatever the nature of an individual’s statutorily created property interest, deprivation of that interest could be accomplished without notice or a hearing at any time. This view misconceives the origin of the right to procedural due process. That right is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. . . .” Id., at 166-167. (Emphasis added.)
I, too, disagreed with the view stated in Mr. Justice Rehnquist’s opinion:
“I differ basically with the plurality’s view that 'where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet,’ and that 'the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest.’ Ante, at 153-154, 155. The rationale of this position quickly leads to the conclusion that even though the statute requires cause for discharge, the requisites of due process could equally have been satisfied had the law dispensed with any hearing at all, whether pretermination or post-termination.” Id., at 177-178.
“Accordingly, a majority of the Court rejects Mr. Justice Rehnquist’s argument that because ap-pellee’s entitlement arose from statute, it could be conditioned on a statutory limitation of procedural due process protections, an approach which would render such protection inapplicable to the deprivation of any statutory benefit — any 'privilege’ extended by Government — where a statute prescribed a termination procedure, no matter how arbitrary or unfair. It would amount to nothing less than a return, albeit in somewhat different verbal garb, to the thoroughly discredited distinction between rights and privileges which once seemed to govern the applicability of procedural due process.” Id., at 211.
The views now expressed by the majority are thus squarely contrary to the views expressed by a majority of the Justices in Arnett. As Mr. Justice Powell suggested in Arnett, they are also “incompatible with the principles laid down in Roth and Sindermann.”
The Court accepts the District Court’s conclusion that the city employee holds his position at the will and pleasure of the city. If the Court believes that the District Court’s conclusion did not rest on the procedural limitations in the ordinance, then the Court must construe the District Court’s opinion — and the ordinance — as permitting, but not limiting, discharges to those based on the causes specified in the ordinance. In this view, discharges for other reasons or for no reason at all could be made. Termination of employment would in effect be within the complete discretion of the city; and for this reason the employee would have no property interest in his employment which would call for the protections of the Due Process Clause. As indiсated in the text, I think this construction of the ordinance and of the District Court’s opinion is in error.
Board of Regents v. Roth,
The majority intimates, ante, at 345 n. 8, that the views of the three plurality Justices in Arnett v. Kennedy were rejected because the other six Justices disagreed on the question of how the federal statute involved in that case should be construed. This is incorrect. All Justices agreed on the meaning of the statute. As the remarks of the six Justices quoted above indicate, it was the constitutional
Similarly, here, I do not disagree with the majority or the courts below on the meaning of the state law. If I did, I might be inclined to defer to the judgments of the two lower courts. The state law says that petitioner may be dismissed by the City Manager only for certain kinds of cause аnd then provides that he will receive notice and an explanation, but no hearing and no review. I agree that as a matter of state law petitioner has no remedy no matter how arbitrarily or erroneously the City Manager has acted. This is what the lower courts say the statute means. I differ with those courts and the majority only with respect to the constitutional significance of an unambiguous state law. A majority of the Justices in Arnett v. Kennedy, stood on the proposition that the Constitution requires procedures not required by state law when the state conditions dismissal on “cause.”
Dissenting Opinion
with whom Mr. Justice Brennan joins, dissenting.
I join Mr. Justice White’s dissent for I agree that’ the Court appears to be adopting a legal principle which specifically was rejected by a majority of the Justices of this Court in Arnett v. Kennedy,
I also feel, however, that Still v. Lance,
The Marion ordinance in the present case contains a “for cause” standard for dismissal and, it seems to me, is like that portion of the statute construed in Still pertaining to termination of employment during the year. As such, it plainly does not subject an employee to termination at the will and pleasure of the municipality, but, instead, creates a proper expectation of continued employment so long as he performs his work satisfactorily. At this point, the Federal Constitution steps in and requires that appropriate procedures be followed before the employee may be deprived of his property interest.