Tracey Johnson v. City of Shelby, Mississip , 642 F. App'x 380 ( 2016 )

Case: 15-60511 Document: 00513436261 Page: 1 Date Filed: 03/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60511 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
March 23, 2016
TRACEY L. JOHNSON; DAVID JAMES, JR., Lyle W. Cayce
Clerk
Plaintiffs - Appellants
v.
CITY OF SHELBY, MISSISSIPPI,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:10-CV-36
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
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
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-60511 Document: 00513436261 Page: 2 Date Filed: 03/23/2016
No. 15-60511
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 relationship ‘At Will’ is recognized
and affirmed as a condition of employment. ‘At Will’ means that an employee’s
employment can be terminated at any time with or without notice.” The City
of Shelby Police Department supplemented the handbook with its own
Standard Operating Procedures, which gave police officers firmer guidance on
what conduct was unacceptable and possible disciplinary steps the department
could take. Prior to the City of Shelby Board Meeting in which Johnson and
James were terminated, the police department used a set of Standard
1 In a prior motion for summary judgment and subsequent appeal, the state law claim
was finally decided and therefore is not at issue in this appeal.
2
Case: 15-60511 Document: 00513436261 Page: 3 Date Filed: 03/23/2016
No. 15-60511
Operating Procedures that were adopted in 2008 (“2008 SOP”). In April of
2009, the chief of police told James that under the 2008 SOP, an officer could
not be terminated without the chief’s recommendation. In the same meeting
that the aldermen voted to terminate Johnson and James, the aldermen voted
to rescind the 2008 SOP and to reinstate the Standard Operating Procedures
from 2006 (“2006 SOP”). In March 2010, Johnson and James filed suit against
the City of Shelby and City Alderman Billings alleging that the City violated
their due process rights and that Billings maliciously interfered with their
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 42 U.S.C. § 1983and the state law claim did not comply with Mississippi’s procedural
requirements. Johnson and James appealed. A panel of this court affirmed
the dismissal of the state law claim for procedural reasons and the
constitutional claim for failing to invoke § 1983. Johnson v. City of Shelby, 743
F.3d 59 (5th Cir. 2013). The United States Supreme Court granted certiorari
and reversed, but only as to the dismissal of the constitutional claim, holding
that Johnson and James did not need to specifically invoke § 1983 to state a
successful claim. Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014). After
being remanded to the district court, the City of Shelby renewed its motion for
summary judgment.
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.
3
Case: 15-60511 Document: 00513436261 Page: 4 Date Filed: 03/23/2016
No. 15-60511
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., No. 15-40710, 2015 WL 6445751, at *2 (5th Cir. Oct. 26, 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 that
either the 2008 SOP or 2006 SOP created a property interest in continued
employment; (3) the district court should have found that the verbal
statements made by the police chief created a property interest; and (4) the
district court should have held that Mississippi state law created a property
interest.
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 Fed. R. Civ. P. 56(c)(2)). We review the district court’s
admissibility rulings for abuse of discretion. Tex. A&M Research Found. v.
Magna Transp., Inc., 338 F.3d 394, 401 (5th Cir. 2003). For evidence to be
4
Case: 15-60511 Document: 00513436261 Page: 5 Date Filed: 03/23/2016
No. 15-60511
admissible, it must be authenticated. Fed. R. Evid. 104(b), 901. An employee
handbook issued by a city government can be self-authenticating as a
publication “issued by a public authority.” Fed. R. Evid. 902(5); see Smith v.
Halliburton Co., No. H-06-0462, 2006 WL 1342823, at *2 (S.D. Tex. May 16,
2006) (holding that regulations and instructions published by the U.S.
Department of Defense were self-authenticating under Rule 902(5)); see also
Kuba v. Sea World, Inc., 428 F. App’x 728, 732 (9th Cir. 2011) (holding that
excerpts and hyperlinks from a municipal website were self-authenticating
under Rule 902(5)). The City of Shelby attached a copy of the employee
handbook—which was clearly labelled “City of Shelby Employee Information
Handbook” with a 2003 revision date—to its motion for summary judgment. 2
And the district court implicitly found the handbook authenticated and
admissible because it relied on the document in granting summary judgment.
Johnson and James have presented no evidence that undermines the
authenticity of the handbook. Therefore, the district court did not abuse its
discretion in admitting and relying on the handbook.
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 (1972).
2 The document was listed in the defendant’s initial motion for summary judgment,
and this motion was incorporated into the defendant’s renewed motion for summary
judgment in March 2015.
5
Case: 15-60511 Document: 00513436261 Page: 6 Date Filed: 03/23/2016
No. 15-60511
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 detailed manual
outlining a binding infraction and disciplinary scheme. Bobbitt v. Orchard,
Ltd., 603 So. 2d 356, 361 (Miss. 1992). However, if an employer’s handbook
simply lists employee expectations and possible grounds for termination, it
does not override the presumption of at-will employment. See McCrory v. Wal
Mart Stores, Inc., 755 So. 2d 1141, 1145 (Miss. Ct. App. 1999) (citing Hartle v.
Packard Elec., 626 So. 2d 106, 110 (Miss. 1993)). The employer’s policies must
be detailed enough that the employer is bound to the procedures set out in
them. Bobbitt, 603 So. 2d at 361. Further, if the employer has explicitly
characterized an employment relationship as at will, an employee handbook
outlining disciplinary procedures does not modify the relationship. Hartle, 626
So. 2d at 110.
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.
6
Case: 15-60511 Document: 00513436261 Page: 7 Date Filed: 03/23/2016
No. 15-60511
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. 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 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
7
Case: 15-60511 Document: 00513436261 Page: 8 Date Filed: 03/23/2016
No. 15-60511
listing infractions in the 2006 SOP overrode the City’s disclaimers in the
employee handbook. See 626 So. 2d at 109-10.
The 2008 SOP also lists possible infractions and possible disciplinary
measures, but it uses even more permissive language than the 2006 SOP. For
example, it states, “Discharge from the department may be imposed for a first
offense and may be imposed at any point in a progressive chain”; “The
department has the sole right to determine the disciplinary process
applicable”; and “An officer or civilian employee may be disciplined or
terminated for a number of reasons including, but not limited to. . . .” This
permissive language, unlike the manual in Bobbitt, does not indicate that the
City of Shelby was bound by the procedures set forth in the SOP. 603 So. 2d
at 357. Therefore, the City of Shelby did not alter its disclaimers in the
employee handbook by listing possible infractions and disciplinary procedures
in the 2008 SOP. See Hartle, 626 So. 2d at 110; McCrory, 755 So. 2d at 1145.
Accordingly, because neither the 2006 SOP nor the 2008 SOP created an
expectation of continued employment in contradiction to the employee
handbook, Johnson and James were at-will employees and had no property
interest in continued employment.
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,
8
Case: 15-60511 Document: 00513436261 Page: 9 Date Filed: 03/23/2016
No. 15-60511
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
Mississippi Code § 45-6-3(c) gives them a property interest. Section 45-6-3(c)
merely defines a law enforcement officer as “any person appointed or employed
9
Case: 15-60511 Document: 00513436261 Page: 10 Date Filed: 03/23/2016
No. 15-60511
full time by the state or any political subdivision thereof, . . . whose primary
responsibility is the prevention and detection of crime, the apprehension of
criminals and the enforcement of the criminal and traffic laws . . . .” This
definition does not give police officers any continued expectation of
employment as long as they enforce the law. Rather, it defines who is a police
officer. Section 45-6-3(c) does not create a property interest.
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.
10