Due Process Rights
Tracey L. Johnson and David James, Jr. were police officers for the City of Shelby, Mississippi. On September 1, 2009, the City’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.
Employees of the City are covered by the City Employee Information Handbook. The 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 Police Department supplemented the handbook with its own Standard Operating Procedures. Prior to the City Board meeting in which Johnson and James were terminated, the Department used a set of Standard Operating Procedures that were adopted in 2008. In April of 2009, the Police Chief told James that under the 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 SOP and to reinstate a 2006 version of the SOP that did not require the Chief’s recommendation for discipline.
Johnson and James sued the City, alleging that the City violated their due process rights. The federal Fifth Circuit Court of Appeals upheld the terminations.
The Court observed that “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. 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. Under Mississippi law, an employee is considered an at-will employee unless an express or implied contract, state law, or local ordinance indicates otherwise.
“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. 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. If the employer has explicitly characterized an employment relationship as at will, an employee handbook outlining disciplinary procedures does not modify the relationship.
“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. The City did not create an expectation of continued employment merely by listing actions that are grounds for discipline. Listing dischargeable infractions does not override an employer’s disclaimer that the employment is at-will, we cannot find that listing infraction in the 2006 SOP overrode the City’s disclaimers in the employee handbook.
“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 applicably”; and “An officer or civilian employee may be disciplined or terminated for a number of reasons including, but not limited to….” This permissive language does not indicate that the City was bound by the procedures set forth in the SOP. Therefore, the City did not alter its disclaimers in the employee handbook by listing possible infractions and disciplinary procedures in the 2008 SOP.”
Johnson v. City of Shelby, 2016 WL 1138301 (5th Cir. 2016).
The above article has appeared in a previous issue of Public Safety Labor News and has been reprinted courtesy of Labor Relations Information System. These articles are for informational purposes only.