Tracey Johnson v. City of Shelby, MississipTracey Johnson v. City of Shelby, Mississip
Gary Erwin Friedman, Esq., Jason Thomas Marsh, Esq., Phelps Dunbar, L.L.P., Jackson, MS, for Defendant-Appellee.
PER CURIAM:*
After their employment was terminated, former police officers Tracey L. Johnson and David James, Jr. filed suit against the City of Shelby, Mississippi, alleging the City had terminated them in violation of their substantive and procedural due process rights, and former individual defendant Harold Billings had maliciously interfered with their employment under state law.1 The district court granted the City of Shelby summary judgment because Johnson and James were at-will employees with no property interest in continued employment. For the reasons discussed below, we AFFIRM.
I. BACKGROUND
On September 1, 2009, the City of Shelby‘s Board of Aldermen voted to terminate Johnson and James, allegedly based on “citizen complaints about the officers profiling, targeting, and harassing people.” Johnson and James claim that they were terminated because they refused to ignore the alleged illegal activities of City Alderman Billings. As police officers, Johnson and James were employees of the City of Shelby.
Employees of the City of Shelby, including police officers, are covered by the City of Shelby Employee Information Handbook (the “Employee Handbook“), a revised version of which was adopted by the City in 2003. In pertinent part, this handbook states: “There is no contract of employment between the City and any one or all of its employees. Employment security cannot be guaranteed for or by any employee,” and, “The right of the employee or the City to terminate the employment
After discovery was completed, the City of Shelby moved for summary judgment. The district court granted this initial motion for summary judgment because the constitutional claim had not been brought under
The district court again granted summary judgment, holding that Johnson and James did not have a protected property interest in their employment because they were at-will employees under Mississippi law and as described in the City‘s employee handbook. Johnson v. City of Shelby, No. 2:10-CV-00036-MPM, 2015 WL 3966238, at *4 (N.D.Miss. June 30, 2015). Johnson and James timely appealed.
II. STANDARD OF REVIEW
In general, “[t]his court reviews a district court‘s grant of summary judgment de novo, applying the same standards as the district court.” E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 397 (5th Cir. 2007). Therefore, we “must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Id. If the trial court‘s evidentiary rulings are also at issue, “we review those rulings for abuse of discretion,” while still applying de novo review to the grant of summary judgment. Keller v. Coastal Bend Coll., 629 Fed. Appx. 596, 598 (5th Cir.2015).
III. DISCUSSION
The central issue in this case is whether Johnson and James had a property interest in continued employment that would allow them to bring a Fourteenth Amendment claim. Johnson and James raise four main arguments on appeal: (1) the district court erroneously relied on the employee handbook because it was unauthenticated; (2) the district court should have found
A. The City of Shelby Employee Handbook
Johnson and James first argue that the district court erred in relying on the employee handbook because it was not authenticated. In a motion for summary judgment, the court may only consider evidence that is presented to it and admissible. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.2012) (citing
B. The 2006 SOP and 2008 SOP
Next, Johnson and James claim that either the 2006 SOP or 2008 SOP created a property interest in continued employment. While the parties dispute which SOP is controlling, we need not reach this issue because neither SOP created a property interest when read in conjunction with the employee handbook.
To have a valid Fourteenth Amendment claim for deprivation of property in violation of substantive or procedural due process, a plaintiff must have a protected property interest. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). An employee can have a property interest in continued employment if it is “created directly by state statute or by a written contract, or by a ‘mutually explicit understanding’ enforceable under state law as an implied contract.” Johnson v. Sw. Miss. Reg‘l Med. Ctr., 878 F.2d 856, 858 (5th Cir.1989). Under Mississippi law, an employee is considered an at-will employee unless an express or implied contract, state law, or local ordinance indicates otherwise. Levens v. Campbell, 733 So.2d 753, 763 (Miss.1999). An employer who does not explicitly characterize the employment relationship as “at will” can create a property interest in continued employment if it creates a de-
The Mississippi Supreme Court found that the employer in Bobbitt v. Orchard, Ltd., who did not include a disclaimer preserving its right to terminate at will, created a property right when it issued a manual that listed specific infractions, grouped those infractions by severity level, and then created a detailed disciplinary system based on the level of infraction. Bobbitt, 603 So.2d at 359-61. Accordingly, a former employee could sue when she had been fired for an offense that, according to the manual, should have resulted in counseling and formal written warnings. Id. at 360-61.
By contrast, in Hartle v. Packard Electric the Mississippi Supreme Court found that the employee handbooks at issue there were not specific enough to alter the at-will status of the plaintiff. Hartle, 626 So.2d at 109-10. The handbooks explained “the conditions of employment, policies, practices, responsibilities, rules of conduct and benefits for employees,” as well as a list of reasons for which an employee could be discharged. Id. at 109. The court held that even though “certain acts were identified as conduct that might lead to discharge[, this] did not indicate that those acts were the exclusive permissible grounds for discharge.” Id. at 110 (citing Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986)). The employee‘s status as “at will” was further reinforced by specific disclaimers in the employee handbooks. Id. at 109. See also McCrory, 755 So.2d at 1145 (“[Through] the mere act of listing ... certain conduct that might warrant immediate discharge, Wal-Mart did not create a reasonable contractually-based expectation in its employees that any offense not so listed would require Wal-Mart to engage in the ‘Coaching for Improvement’ process.“).
The 2006 SOP lists expectations for Shelby police officers, as well as possible disciplinary actions and processes. However, it cautions that the manual‘s policies and procedures are subject to change and that not all possible disciplinary actions are included. Unlike the employer‘s manual in Bobbitt, which had detailed disciplinary procedures based on the severity of the offense, the 2006 SOP lists possible infractions without indicating their severity and explains only one general disciplinary procedure. See Bobbitt, 603 So.2d at 357. The City of Shelby did not create an expectation of continued employment merely by listing actions that are grounds for discipline. See Hartle, 626 So.2d at 110; McCrory, 755 So.2d at 1145. Further, just as the Mississippi Supreme Court held in Hartle that listing dischargeable infractions does not override an employer‘s disclaimer that the employment is at-will, we cannot find that listing infractions in the 2006 SOP overrode the City‘s disclaimers in the employee handbook. See Hartle, 626 So.2d at 109-10.
The 2008 SOP also lists possible infractions and possible disciplinary measures,
C. Verbal Statements Made by the Chief of Police
Third, the appellants argue that statements made by the police chief to James created a property interest by showing an explicit mutual understanding that Johnson and James could not be fired at will. However, a “mutually explicit understanding” between an employer and employee creates a property interest in continued employment only when that understanding is “enforceable under state law as an implied contract.” Johnson, 878 F.2d at 858. Johnson and James do not argue that these statements created an understanding that was enforceable under Mississippi law. In fact, Johnson and James argue that enforceability under state law is irrelevant. Therefore, the appellants forfeited the argument that the police chief‘s statements created an enforceable understanding and property interest.
D. Mississippi Law
Finally, Johnson and James argue that they have a property interest because under Mississippi state law, police officers are required to enforce the law and cannot be discharged for refusal to participate in illegal activities. In McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (Miss.1993), the Mississippi Supreme Court established a narrow common law exception to the employment at-will doctrine, such that “an employee who refuses to participate in an illegal act [is] not barred by the common law rule of employment at will from bringing an action in tort for damages against his employer.” While the common law exception allows the employee to bring a state tort action, it does not give the employee a property interest. See Stark v. Univ. of S. Miss., 8 F.Supp.3d 825, 840 (S.D.Miss.2014) (“[T]he Court is unaware of, and the Plaintiff fails to cite any authority holding that McArn establishes a contractual right to continued employment and a resulting property interest that is protected under the Due Process Clause.“); Papagolos v. Lafayette Cnty. Sch. Dist., 972 F.Supp.2d 912, 929, 931 (N.D.Miss.2013) (analyzing a McArn claim only as a state law tort claim, and not mentioning it as a basis for a property interest protected by the Constitution); Stephen v. Winston Cnty., No. 1:07CV118-SA-JAD, 2008 WL 4813829, at *5-7 (N.D.Miss. Nov. 4, 2008) (same); Harris v. Miss. Valley State Univ., 873 So.2d 970, 985-86 (Miss.2004) (same). Therefore, although the McArn doctrine may have allowed Johnson and James to bring a state tort action, it did not give them a constitutionally-protected property interest in their employment.
Johnson and James also argue that the definition of a police officer under
Because Johnson and James were at-will employees with no property interest in continued employment, their Fourteenth Amendment claim for deprivation of property without due process fails as a matter of law.
IV. CONCLUSION
For the above-mentioned reasons, the judgment of the district court is AFFIRMED.
Albert Harris, Tennessee Colony, TX, pro se.
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
Albert Harris, Texas inmate # 677922, appeals the dismissal of his
This court must examine the basis of its jurisdiction and may do so sua sponte, if