Sutherland v. Tooele City Corp. , 91 F. App'x 632 ( 2004 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 3 2004
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    TRAVIS L. SUTHERLAND,
    Plaintiff-Appellant,
    v.
    TOOELE CITY CORPORATION; RON
    KIRBY, individually and as Chief of
    Police; C. H. BROWN; SUE CASIAS;
    LAWRENCE SILCOX; SHANNON
    No. 02-4199
    WALTERS; KYLE PITTS, individually
    (D.C. No. 2:00 CV-128-ST)
    and as members of the Employee Appeals
    (Utah)
    Board; CHARLIE ROBERTS,
    individually and as Mayor; C. H.
    BROWN; LAWRENCE SILCOX;
    COLLEEN JOHNSON; MICHAEL
    JOHNSON; EARL COLE, individually
    and as members of the Tooele City
    Council,
    Defendants-Appellees.
    ORDER AND JUDGMENT*
    Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O’BRIEN,
    Circuit Judge.
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    In a 15-page complaint to which were attached 12 “exhibits” totaling 32 pages,
    Travis L. Sutherland (“plaintiff”) filed suit against the Tooele (Utah) City Corporation
    (“Tooele” or “City”) and 12 of its officials, the latter in their individual capacity as well
    as in their official capacity.1 The basis for the action was plaintiff”s claim that he was
    discharged by Tooele on July 1, 1999, from his employment as a permanent police officer
    for Tooele, where he had served for some five years, and that in terminating his
    employment with Tooele, the defendants violated plaintiff’s due process rights under the
    Fourteenth Amendment of the United States Constitution. The first cause of action was
    based on the First and Fourteenth Amendments of the United States Constitution and 
    42 U.S.C. § 1983
    .
    In a second and last cause of action, the plaintiff incorporated therein by reference
    all of the allegations set forth in his first cause of action and went on to further allege that
    on November 17, 1999, the Tooele City Council voted to uphold the termination of his
    employment and that immediately thereafter the defendants notified the press and others
    that plaintiff was discharged for reasons that “adversely impinged his good name and
    reputation in the community.” As a result, the plaintiff alleged that he was “deprived of
    his good name and reputation in the community and deprived of his liberty interest in
    Ron Kirby was sued individually and as Chief of Police; the five members of the
    1
    Employees Appeal Board were sued individually and as members of the Board; Charlie
    Roberts was sued individually and as the Mayor of Tooele; and the five members of the
    Tooele City Council were sued individually and as members of the Council.
    -2-
    violation of law,” for which he sought damages and reinstatement.
    The defendants through their attorney filed a motion to dismiss on the grounds that
    “the individual defendants are protected by qualified immunity and that the plaintiff has
    failed to state a claim upon which relief may be granted.” The district court denied the
    defendants’ motion to dismiss and granted plaintiff’s motion to amend his complaint.
    An amended complaint was thereafter filed. The amended complaint paralleled
    the original complaint, and contained the same two causes of action. The defendants in
    due time filed an answer thereto. After discovery, the defendants filed a motion for
    summary judgment. The plaintiff later filed a cross-motion for summary judgment. After
    hearing, the district court granted defendants’ motion for summary judgment and denied
    plaintiff’s cross-motion for summary judgment in a 30-page memorandum opinion and
    order. Plaintiff appeals.
    The following is a not-so-brief chronology of the background facts which will
    place the present controversy in focus:
    PRE-TERMINATION
    Plaintiff was hired by Tooele as a permanent full time police office on June 28,
    1994. Under his contract with Tooele, plaintiff’s employment could not be terminated
    without cause. Beginning in April 1995, and continuing until his termination on July 1,
    1999, plaintiff had some 12 complaints filed against him by either citizens of Tooele or
    by fellow officers on the Tooele Police Department. As a result of these several
    -3-
    complaints, plaintiff received a verbal reprimand for offensive behavior and rudeness
    occurring on April 5, 1995, and for using foul language on September 15, 1995. On
    March 12, 1996, plaintiff received a written reprimand for “disposing” of beer which had
    been confiscated during an arrest, the beer being found in plaintiff’s refrigerator instead
    of in an evidence locker. In October, 1996, a complaint was made against plaintiff that he
    had improperly questioned a female juvenile at a Tooele school. On April 4, 1997, he
    received another reprimand for offensive demeanor and rudeness. On October 20, 1997,
    plaintiff received a verbal reprimand for accidentally discharging a firearm in a house
    during the course of a burglary investigation. On November 4, 1997, an internal
    complaint was filed against the plaintiff for excessive use of force when he punched a
    suspect in the face and for failing to submit a report thereof. In November 1997, plaintiff
    received a written reprimand and was suspended without pay for two days when he failed
    to properly dispose of a marijuana cigarette and again failed to file a report. In January,
    1998, plaintiff received another written reprimand for using excessive force when he
    allegedly placed pliers on the fingers of several 15-year old boys and told them that he
    would squeeze the pliers harder if they didn’t tell the truth. In August, 1998, plaintiff
    received a written reprimand for speeding in a police car. In November, 1998, plaintiff
    allegedly filed a false report concerning verbal abuse and mishandling of evidence, which
    were not “sustained.” In addition thereto and after certain “corrective measures” had
    been ordered, plaintiff’s personnel file showed four employment evaluations noting his
    -4-
    performance as being “below average,” and that he was denied a “merit raise” in January,
    1998.
    On May 19, 1999, when plaintiff was five months into a six-month “corrective
    action plan,” another complaint was filed against plaintiff by one Lavetta Sandoval, a
    resident of Tooele. The complaint was that plaintiff had engaged in offensive and
    improper behavior toward Sandoval’s 15-year old daughter. This complaint prompted the
    Chief of the Tooele Police Department (“Chief Kirby”) to begin an internal affairs
    investigation into Sandoval’s charges. Interviews of Sandoval, her daughter, and one of
    the daughter’s friends, were videotaped and later transcribed. Plaintiff was interviewed
    by Chief Kirby on two occasions concerning this, and other matters, which interviews
    were videotaped and later transcribed. In the first of these two interviews, on May 15,
    1999, Chief Kirby informed plaintiff of Sandoval’s complaint that plaintiff had an
    improper discussion concerning sex with her daughter and that he had taken the daughter,
    and her friend, to an adult novelty store to have the daughter’s navel pierced and that he
    had provided them with some prescription medication. Plaintiff had been previously
    cautioned that, if he lied during the internal affairs investigation, he would be fired.
    During the first of the two interviews, plaintiff admitted that he had engaged in
    conversation of a sexual nature with Mrs. Sandoval when her daughter was present and
    acknowledged that he had taken the daughter and her young friend to a novelty store so
    that she could get her navel pierced for her sixteenth birthday. In the same interview,
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    plaintiff told Chief Kirby that he did not talk to the Sandoval girl about oral sex during
    the drive to the novelty store. Plaintiff also stated he gave the girl some medicine, but
    was not sure “what type of prescription it was, matter of fact it was Ibuprofen 800’s.”
    The second interview occurred on June 12, 1999. In that interview he admitted to
    engaging in sexual conversation with the young girls he had taken to the novelty store
    where the daughter had her navel pierced, although the conversation occurred, according
    to the plaintiff, in a manner in which he told the girls they should not engage in oral sex.
    As for the medication conversation in the first interview, plaintiff in the second interview
    said that the medication was not prescription, but over-the-counter Ibuprofen.
    On June 16, 1999, plaintiff was notified in two letters that Chief Kirby was
    charging him with (1) a historical pattern of employee misconduct and poor performance;
    (2) a violation of the Law Enforcement Code of Ethics; and (3) lying to a supervisor
    during an internal affairs investigation. These letters advised him of the specific
    allegations being considered against him as well as the underlying evidence supporting
    the charges. These same letters informed the plaintiff that he was being placed on paid
    suspension pending possible disciplinary action, and that a pre-termination decision
    hearing would be held on June 30, 1999. He was also told that he was entitled to provide
    Chief Kirby with a written response to the charges and was entitled to review the internal
    affairs file relating to the allegations made against him. Plaintiff acknowledged receipt of
    these letters and admits to being allowed to go to Chief Kirby’s office to review the
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    internal affairs files. To all of this, plaintiff’s response to the numerous allegations was
    merely, “I deny all charges listed against me.”
    On June 30, 1999, plaintiff was given a so-called pre-decision “Loudermill”
    hearing. At that hearing, the charges were explained to the plaintiff and he said he
    understood them. When asked if he wished to respond to those charges, he repeatedly
    stated he had “no comment.”2
    Following the “Loudermill” hearing, a further hearing was set for July 1, 1999.
    Plaintiff did not attend that hearing. Accordingly, Chief Kirby sent plaintiff a letter, dated
    July 1, 1999, again informing him of the charges made against him and that his
    employment with Tooele as a city policeman was terminated. Plaintiff was reminded of
    his appeal rights in the same letter.
    2
    As concerns the amount of due process constitutionally required in a pre-
    termination hearing, in Cleveland Board of Education v. Loudermill, 
    470 U.S. 532
    , 546
    (1985), the Supreme Court spoke as follows:
    The essential requirements of due process, and all that respondents seek or
    the Court of Appeals required, are notice and an opportunity to respond.
    The opportunity to present reasons, either in person or in writing, why
    proposed action should not be taken is a fundamental due process
    requirement. The tenured public employee is entitled to oral or written
    notice of the charges against him, an explanation of the employer’s
    evidence, and an opportunity to present his side of the story. To require
    more than this prior to termination would intrude to an unwarranted extent
    on the government’s interest in quickly removing an unsatisfactory
    employee. (Citations omitted.)
    -7-
    POST-TERMINATION
    Plaintiff initiated the appeals process by completing the appeal form given him by
    Chief Kirby and submitting it to the Tooele City Police Department.
    As permitted by the appeals procedure, plaintiff first appealed to the Tooele City
    mayor and was given a hearing before Tooele City Mayor, Charlie Roberts. At that
    hearing, plaintiff was represented by an attorney, one Steven Cook, who represents him in
    this appeal.3 After hearing, the mayor upheld plaintiff’s termination from the Tooele
    Police Department.
    Plaintiff thereafter, through counsel, appealed the mayor’s determination to the
    Tooele City Employees Grievance Appeal Board. A hearing was set for September 14,
    1999. On August 20, 1999, the Tooele City Attorney, Roger Baker, sent a letter to the
    members of the Appeal Board, suggesting proper procedures to be followed at the appeals
    hearing. A copy of that letter was sent to plaintiff’s attorney. In the body of that letter,
    Baker advised plaintiff’s attorney of plaintiff’s right to present evidence at the hearing
    and invited him to make procedural suggestions regarding the upcoming hearing.
    On August 26, 1999, plaintiff’s attorney objected to this letter on the grounds that
    Baker had engaged in ex parte communication with the Appeals Board members, and by
    a letter dated August 25, 1999, plaintiff’s attorney requested from Baker the issuance of
    Counsel spoke at great length during the hearing on his client’s behalf. At the
    3
    conclusion of counsel’s statements, the Mayor asked plaintiff if he wanted to add
    anything, to which plaintiff responded, “No, Steven has got it.”
    -8-
    ten subpoenas to compel the attendance of witnesses at the hearing. Baker responded to
    that request, by letter, on August 27, 1999, stating that plaintiff was entitled to call any
    witness he wanted to, but that the City could not issue subpoenas on behalf of the
    plaintiff. The City apparently did not have the power to issue subpoenas in an
    administrative proceeding of this nature.
    About one week before the hearing, Baker delivered an unredacted copy of the
    evidence binder that he was to present at the hearing, both to plaintiff’s attorney and the
    members of the Board.
    The hearing before the Appeals Board took place on September 14, 1999, Cook
    appearing as plaintiff’s attorney, with the City calling the Mayor and Chief Kirby as
    witnesses. Both were cross-examined by Cook. At the close of the City’s case, the
    plaintiff called no witnesses nor did he, himself, testify. Plaintiff’s attorney had
    previously objected to one Sue Casias serving as a member of the Board because she was,
    at the time, working as a secretary in the City Attorney’s office. She had been elected by
    the Tooele City Employment body, to serve as a board member. At the conclusion of the
    hearing, the Board voted unanimously to uphold plaintiff’s termination as a police officer
    for the City.
    On October 22, 1999, the Chairman of the Tooele City Council sent a letter to
    plaintiff’s attorney, informing him of plaintiff’s right to appeal the decision of the Appeal
    Board to the Tooele City Council and inviting plaintiff to participate in such a hearing. In
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    this letter, the Chairman stated that it could not issue subpoenas on plaintiff’s behalf, but
    that plaintiff could present any witnesses he wished. Plaintiff did not respond to the
    Council’s letter nor did he appear at the City Council meeting. In that setting, the Council
    upheld plaintiff’s termination.
    At the outset of our discussion, it should be noted that we are not here reviewing
    the merits of plaintiff’s discharge from the Tooele Police Department. Our basic concern
    is whether the state and local rules and regulations governing discharge of a permanent
    employee of the Tooele Police Department provided the plaintiff with his Fourteenth
    Amendment rights to “due process.” In this regard, in Pitts v. Board of Educ., 
    869 F.2d 555
    , 557 (10th Cir. 1989), we spoke as follows:
    He [Pitts] also spends a great deal of time arguing that the
    grounds for termination which the board listed are
    unsupportable and stigmatizing. Pitts misunderstands the
    nature of his federal claim, which is an assertion that he was
    denied due process. Federal courts do not sit to second guess
    state decisions on the merits of a discharge decision, but only
    to ensure that employees are provided due process when the
    decision is made.
    Stated somewhat differently, this is not an action for breach of contract. We are
    not here concerned with whether plaintiff’s termination procedures complied with local
    law. Rather, it is an action brought in federal court seeking redress against state officials
    acting under the color of state law who, in so doing, allegedly deprived the plaintiff of
    rights guaranteed by the United States Constitution and laws passed pursuant thereto.
    Specifically, 
    42 U.S.C. § 1983
     reads as follows:
    - 10 -
    Every person who, under color of any statute,
    ordinance, regulation, custom, or usage, of any State or
    Territory or the District of Columbia, subjects, or causes to be
    subjected, any citizen of the United States or other person
    within the jurisdiction thereof to the deprivation of any rights,
    privileges, or immunities secured by the Constitution and
    laws, shall be liable to the party injured in an action at law,
    suit in equity, or other proper proceeding for redress, except
    that in any action brought against a judicial officer for an act
    or omission taken in such officer’s judicial capacity,
    injunctive relief shall not be granted unless a declaratory
    decree was violated or declaratory relief was unavailable. For
    the purposes of this section, any Act of Congress applicable
    exclusively to the District of Columbia shall be considered to
    be a statute of the District of Columbia.
    In its memorandum and order granting defendants’ motion for summary judgment
    and denying plaintiff’s motion for summary judgment, the district court first held that the
    individual defendants were entitled to qualified immunity. In so doing, the district court
    cited Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982) for the proposition that “[q]ualified
    immunity generally shields from liability for civil damages ‘government officials
    performing discretionary functions . . . . insofar as their conduct does not violate clearly
    established statutory or constitutional rights of which a reasonable person would have
    known’.” The district court then went on to hold, that based on the record before it, the
    plaintiff had been afforded procedural due process in both his pre-termination and post-
    termination hearings, and that the defendants, acting in their official capacity, were not
    liable to the plaintiff under 
    42 U.S.C. § 1983
    .
    On appeal, plaintiff first challenges the district court’s holding that the individual
    - 11 -
    defendants were entitled to qualified immunity. Further, as we understand it, the plaintiff
    does not challenge the district court’s determination that plaintiff was afforded pre-
    termination “due process.” However, in this regard, plaintiff does challenge, on a number
    of different grounds, the district court’s finding that plaintiff’s post-termination hearings
    satisfied the “due process” requirement of the Fourteenth Amendment.4
    We are in accord with the district court’s holding that the individual defendants
    were entitled to qualified immunity for the reasons given by the district court in its
    memorandum opinion and order. Also, we agree with the district court’s finding that the
    post-termination hearings afforded plaintiff “due process,” and that the defendants, acting
    in their official capacities, were not liable to the plaintiff under 
    42 U.S.C. § 1983
    . Indeed,
    it would seem to us that plaintiff actually received an abundance of “due process,” from
    start to finish.
    As stated, we are here concerned with plaintiff’s “due process” rights under the
    Fourteenth Amendment, and we are not here concerned, for example, with an accused’s
    rights in a criminal prosecution as set forth in the Sixth Amendment. The instant case
    involves administrative hearings, and is not a criminal trial. So, the particular issue in the
    Counsel asserts that the state and local rules and regulations regarding termination
    4
    of a permanent employee violated his right of due process because he was denied his right
    to confront and cross-examine members of the Sandoval family and he was not afforded
    his right to subpoena witnesses on his own behalf. Also, counsel sought, unsuccessfully,
    to challenge the partiality of one member of the five person Appeals Board and
    complained about the adequacy of the findings on the part of the Chief of Police, the
    Mayor, the Appeals Board and the City Council.
    - 12 -
    present case is whether the plaintiff’s due process rights in the post-termination
    proceedings, not the pre-termination proceedings, met the “due process” test of the
    Fourteenth Amendment. In other words, as we understand it, the parties agree that, as a
    permanent employee of the Tooele Police Department, plaintiff could not be terminated
    without first being afforded procedural “due process.” Under state law, plaintiff clearly
    had a property right in his continued employment as a policeman for the City. (Plaintiff’s
    claim in his complaint that the defendants violated his “liberty interest,” as well as his
    property interest, was not pursued in the district court and is not an issue in this appeal.)
    The dispute here is the “level” of due process that the Fourteenth Amendment affords
    him.
    Plaintiff argues that under Calhoun v. Gaines, 
    982 F.2d 1470
    , 1476-7, (10th Cir.
    1992), he was entitled to a “full blown adversarial post-termination hearing.” It is true
    that in Calhoun we used that language. However, in Calhoun we first determined that
    Calhoun, the plaintiff therein, had not received “due process” in the pre-termination
    hearings and it was in that context that we said that the plaintiff was then entitled to a
    “full blown” hearing in his post-termination proceedings. In the instant case the district
    court held that plaintiff had received “due process” in his pre-termination proceedings, a
    holding with which we are in complete accord, and which is not raised on appeal.
    In this regard, in Benavidez v. City of Albuquerque, 
    101 F.3d 620
    -627 (10th Cir. 1996),
    we spoke as follows:
    - 13 -
    When the pre-termination process offers little or no
    opportunity for the employee to present his side of the case,
    the procedures in the post-termination hearing become much
    more important. Such a post-termination hearing represents
    the only meaningful opportunity the employee has to
    challenge the employer’s action, and requiring a dismissed
    employee to prove in this context that he was terminated
    without just cause may increase the risk of an erroneous
    deprivation. It is often difficult to prove a negative, and
    where the pre-termination process has been minimal, the
    employee’s fate may depend entirely upon the post-
    termination hearing. Cf. Lavine, 424 U.S. at 585, 96 S.Ct. at
    1016 (recognizing that “[w]here the burden of proof lies on a
    given issue is, of course, rarely without consequence and
    frequently may be dispositive”); Speiser v. Randall, 
    357 U.S. 513
    , 525, 
    78 S.Ct. 1332
    , 1342, 
    2 L.Ed.2d 1460
     (1958)
    (acknowledging that “where the burden of proof lies may be
    decisive of the outcome”).
    So, the question presented on this particular matter is whether plaintiff was given
    “due process” in his post-termination hearing, wherein the district court held, inter alia,
    under the described circumstances, that plaintiff did have notice of the hearing, and of his
    right to respond, and, in fact, was given a chance to tell his side of the story (which he
    did, through counsel, at the hearing before the Mayor). We agree with the district court’s
    assessment of the matter.
    We think plaintiff’s reliance on McClure v. Independent Sch. Bd. No. 16, 
    228 F.3d 1205
     (10th Cir. 2000) is misplaced. In that case we did state that a termination of
    employment hearing includes the right to be represented by an attorney and the “right to
    cross-examine adverse witnesses.” 
    Id. at 1211
    . In that same opinion we also said that
    “[w]hile not necessary in every case, procedural due process often requires confrontation
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    and cross-examination of those whose word deprives them of a livelihood.” 
    Id.
     We deem
    the facts in the instant case, though similar in some respects, to be markedly different, in
    other respects, from those in McClure.5 In this general connection, in Rosewitz v. Latting,
    
    689 F.2d 175
     (10th Cir. 1982) (abrogated on other grounds by American Mfrs. Mut. Ins.
    Co. v. Sullivan, 
    526 U.S. 40
     (1999)), we said that “[e]ssentially, procedural due process
    requires notice and an opportunity to be heard in a meaningful time and manner” and that
    “[d]ue process is flexible and calls for such procedural protections as the particular
    situation demands.” See also West v. Grand County, 
    967 F.2d 362
    , 369 (10th Cir.
    1992)(“Confrontation and cross-examination . . . are not rights individually applicable to
    all hearings.”) (citing Wolff v. McDonnell, 
    418 U.S. 539
    , 567 (1974)).
    5
    In McClure, the court stated, “Unlike the present case, the defendant in
    Rosewitz provided its employees with a five-step grievance procedure that offered several
    opportunities to present a defense . . . . We pointed out that, as a result, the risk of
    erroneous deprivation was not great.” McClure, 
    228 F.3d at 1212, n. 6
    . Similarly, in this
    case plaintiff was offered several opportunities to present a defense.
    - 15 -
    The judgment is affirmed.6
    ENTERED FOR THE COURT,
    Robert H. McWilliams
    Senior Circuit Judge
    6
    Counsel for the defendants also argues in this court that plaintiff’s failure to
    attend the hearing before the City Council waives his right to appeal the City Council’s
    decision to uphold his termination, citing Pitts, 
    supra.
     The district court in its order did
    not consider “waiver,” as such, based on plaintiff’s failure to pursue to conclusion his
    right to appeal to the City Council and in view of our disposition of this appeal on other
    grounds, we decline to consider “waiver” as another ground for affirming the district
    court’s resolution of this controversy. In this general connection, in Pitts we specifically
    rejected any suggestion that Pitts “must exhaust his claim before he has a federal cause of
    action,” as did the district court in the present case.
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