498 F. 2d 1341 - Bishop v. W H Wood

Upon consideration of the record, the briefs, and oral argument, we are of opinion the judgment below was correct, and affirm on the opinion of the district court, 377 F.Supp. 501 (W.D.N.C.1973).

Affirmed.

Unlike my co-panelists, I think that Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1952), not only foreclosed the entry of summary judgment for defendants, but require that, if summary disposition is to be made, plaintiff should be adjudged entitled to recover damages from defendants in an amount subsequently to be assessed. I therefore respectfully dissent.

Plaintiff was employed as a policeman for more than thirty-three months by the City of Marion, North Carolina. He was dismissed by the City Manager upon the complaint of the Chief of Police for unsatisfactory work, failure to attend training schools, 'insubordination,' and the commission of 'acts unsuited to a police officer.' Admittedly, the plaintiff was not given notice that there were grounds allegedly sufficient to discharge him, nor was he given a hearing to determine if those grounds were well grounded. He was given written notice of his discharge, but all of the reasons therefor were not set forth. In short, if plaintiff was entitled to be afforded procedural due process, it was clearly denied him; he was given neither notice nor a hearing.

As I read Roth and Sindermann, plaintiff was entitled to recovery under either or both of two theories. In my view, he had been deprived of an interest in 'property' and he had been deprived of his 'liberty.'

Roth and Sindermann make clear that the right to tenure is a 'property' interest entitled to the protection of procedural due process. Plaintiff possessed such a right. Under the ordinances of the City of Marion which governed his employment, newly hired policemen are probationary employees for six months. After then they become permanent employees, and a permanent employee may be discharged only if he 'fails to perform work up to the standard of the classification held, or continues to be negligent, inefficient, or unfit to perform his duties (after he has been first 'notified in what way his work is deficient and what he must do if his work is to be satisfactory').' Article II, 6, Personnel Ordinance of the City of Marion. I can only read this ordinance as giving plaintiff a right to continuing employment unless there be good cause for his dismissal. This continuing right is tantamount to tenure; hence, my conclusion that plaintiff had a 'property' right to his employment entitling him to procedural due process protection.

Even if plaintiff lacked a property right in his job, there can be no question that the circumstances of his dismissal from public employment injured certain interests embraced within the concept of 'liberty' found in the fourteenth amendment. In Roth, the Court quoted from Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971), that 'where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.' 408 U.S. at 573, 92 S.Ct. at 2707. Defendants' affidavits admit that plaintiff was dismissed, inter alia, because of 'insubordination' and 'conduct unsuited to a police officer.' Accusations of this nature made against one engaged in the occupation of a law enforcement officer manifestly have a severe adverse impact upon future employment opportunities, and it can be reasonably expected that defendants would disclose these reasons upon the request of a person considering plaintiff's employment who inquired of the respects in which plaintiff's work had been found unsatisfactory. To my mind, it therefore follows that procedural due process should apply, and as a minimum plaintiff should have been given notice of and afforded an opportunity to refute the charges before he was dismissed.

I add a word about the jurisdiction of the district court. Plaintiff joined the City of Marion, North Carolina, as a party-defendant, together with the Chief of Police and the City Manager. Jurisdiction was alleged to exist under 42 U.S.C. 1983; 28 U.S.C. 1331(a) and 1343(3). Of course, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), hold that the City of Marion is not a 'person' within the meaning of 42 U.S.C. 1983, and therefore the district court lacked jurisdiction over the claim against the City under 28 U.S.C. 1343(3). Jurisdiction as to the individual defendants unquestionably existed. But, as to the City, plaintiff alleged a deprivation of his right to procedural due process under the fourteenth amendment, and the district court had jurisdiction under 28 U.S.C. 1331(a), provided there was the requisite amount in controversy. Whether $10,000 is at issue is sharply contested on the theory that plaintiff's back pay claim after mitigation of damages will not reasonably amount to $10,000. The short answer is that the district court had pendent jurisdiction over the claim against the City arising directly under the fourteenth amendment by reason of the intimate connection of that claim with the 1983 claim against the other defendants. The Second Circuit has held that the doctrine of pendent jurisdiction applies even where the defendant to the pendent claim is not a defendant to the claim conferring jurisdiction, and I would follow its lead. Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 809-811 (2 Cir. 1971).