The full case caption appears at the
end of this opinion. Opinion: This case involves a termination of the employment of a police officer by the City of Liberty, Missouri. Upon being terminated, the officer appealed her dismissal to the City Administrator, as provided for the in the employee manual, and the appeal was summarily dismissed. The police officer filed suit in circuit court, where summary judgment was entered for the City. Finding that the police officer had a property interest in continued employment, we hold that she was entitled to notice and an opportunity to be heard prior to final termination, and we, therefore, reverse and remand.
Factual & Procedural Background Beverly Hamby (“Appellant”) was employed as a police officer by the City of Liberty, Missouri (“Respondents” or “City”) Police Department from January 28, 1986 until January 3, 1996, on which date the Chief of Police, Bruce W. Davis, notified Appellant in a memo that her employment with the City was being terminated. Among other things, the memo stated: I have recommended your termination of employment to the City Administrator and he has approved this recommendation. Effective this date you are terminated from employment as a police officer with the City of Liberty. This termination is based upon your failure to successfully complete your performance probationary period . . .
Under the provisions of Section 9.1 of the City of Liberty Personnel Manual you have a right to appeal this matter to the City Administrator within five working days of the action. Should you file such [sic] appeal it should be made in writing and the City Administrator will render a decision on the appeal within five working days.
The dismissal came seven months into an eighteen-month probationary period Appellant had been serving as part of her promotion from police officer to police detective. That “probationary period” referred specifically to Appellant’s status as a newly promoted detective. At the time of dismissal, Appellant was not a probationary employee in the context of her general employment with the Police Department. The memo neither elaborated on why or how the Chief decided that Appellant had failed to perform adequately, nor set out any other reasons for her dismissal. Five days later, on January 8, 1996, Appellant appealed by letter from her termination to the City Administrator of Liberty, Gary W. Jackson, pursuant to the Personnel Manual (“Manual”) of the City of Liberty. The letter, sent by Appellant’s attorney, included the following:Pursuant to Section 9.1.1 of the Personnel Manual of the City of Liberty, Missouri, Officer Hamby hereby appeals her termination of employment as a result of her alleged failure to successfully complete her performance probationary period. Officer Hamby is hereby requesting that she be reinstated to her position as a Officer with full back pay and benefits . . .
Please contact me upon receipt of this letter so that we can arrange a time for our office to pick up a copy of Officer Hamby’s files and to schedule either a meeting to discuss Officer Hamby’s files and to schedule either a meeting to discuss Officer Hamby’s termination or a time for a Grievance Board Hearing pursuant to Section 9.2 of the Personnel Manual.
Section 9.0 of the Manual sets forth the grievance procedures available to dismissed City employees “who believe that they have been dealt with unfairly or who have alleged that they have been discriminated against . . . .” Sections 9.1.1 & 9.1.2 further provide that such an employee should appeal the matter to the City Administrator who, in turn, will either render a final decision on the appeal or appoint an unbiased representative to hear the appeal. The City Administrator, by letter dated January 11, 1996, wrote to Appellant’s attorney: “We are unaware of any provisions of Missouri or Federal law that impose upon the City a duty to allow a board hearing.” The letter also went on to say, “your request for a hearing is denied.” Appellant filed a petition for review in the Circuit Court of Clay County pursuant to Missouri Section 536.150.[FOOTNOTE 1] Appellant alleged that at the time of her termination, she was one of only three female officers employed by the Liberty Police Department, and that the decision to terminate her, and the City Administrator’s subsequent affirmation of that decision, was “discriminatory based on her sex” and “was in violation of [Appellant's] civil rights to be free from sexual harassment and discrimination.” Respondent answered in the form of a general denial that “the decision of the Chief of Police, affirmed by the City Administrator, terminating [Appellant's] employment, was based on [Appellant's] unsatisfactory job performance and repeated failures to address job performance deficiencies brought to [her] attention by her supervisors.” Discovery proceeded, and on January 16, 1997, Respondents filed a motion for summary judgment and suggestions in support of that motion. Subsequently, on April 8, 1997, Appellant filed both a response to and suggestions in opposition to Respondents’ motion for summary judgment. On April 24, 1997, the circuit court granted Respondents’ motion for summary judgment. Appeal was taken. Thereafter, on June 2, 1998, this court dismissed the appeal and remanded the case to the circuit court after ruling that the judgment issued April 24, 1997 was not final. Finally, on August 28, 1998, the Clay County Circuit Court rendered a decision entitled, “Judgment of Dismissal” which read as follows:[t]he Court takes up [Respondents'] Motion for Summary Judgment. The Court treats said Motion as a Motion to Dismiss as well as for Summary Judgment. After review of the pleadings and the Motions and Suggestions filed herein, the Court enters judgment dismissing the Plaintiff’s Petition at Plaintiff’s costs. This appeal ensued. On appeal, Appellant argues that Judge Russell entered summary judgment in favor of Respondents. Respondents, however, argue that he did not render summary judgment, but rather dismissed the case. The trial court entered a judgment entitled “Judgment of Dismissal” but noted that it was based on Respondent’s Motion for Summary Judgment. The trial court also stated that it was treating Respondent’s motion both as a motion for summary judgment and as a motion to dismiss. The court then noted that it was entering judgment “after review of the pleadings and motions and suggestions filed therein.” Under Missouri Rule of Civil Procedure 55.27, a motion to dismiss is to be treated as one for summary judgment when information outside the pleadings is presented to and not excluded by the court. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo. App. 1998). Since the trial considered “Motions and Suggestions filed” in addition to the pleadings in making its disposition, the judgment entered herein, despite the fact that it was entitled, “Judgment of Dismissal,” is to be treated as a summary judgment. Id.
Standard of Review In reviewing a grant of summary judgment, we examine the entire record to determine whether there is any issue of material fact and whether the moving party was entitled to judgment as a matter of law.
Dial v. Lathrop R-II School District, 871 S.W.2d 444, 446 (Mo. banc 1994). We will review the record in the light most favorable to the party against whom summary judgment was entered.
ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We accord the non-movant the benefit of all reasonable inferences from the record.
Id. The propriety of summary judgment is purely an issue of law.
Id. Our review is essentially
de novo.
Id. Discussion Respondents claimed in the trial court motion that they were entitled to summary judgment for the following reasons:
1. Appellant was an employee-at-will at the time of her termination; and 2. Appellant’s employment was therefore terminable under Missouri law at any time, for any reason, or for no reason at all; and 3. No statute required that Appellant be granted a hearing at the time of the termination of her employment; and 4. Appellant was given all of the process called for under the City’s Personnel Manual; and 5. Appellant has no right to review before this court.
Even if Appellant’s response to Respondents’ motion for summary judgment did not present any genuine issues of material fact, we nevertheless conclude that Respondents were not entitled to summary judgment as a matter of law. We find that Appellant was not an at-will employee as Respondents’ claim. We instead find that Appellant had a property interest in her employment thus entitling her to sufficient notice of the reasons for her termination and an opportunity to present her side of the story to her employer before her employment could be terminated. We further find that Appellant was entitled to more process than that provided for under the City’s Personnel Manual. Missouri courts have held that under certain circumstances, a public employee has a constitutionally protected property interest in continued employment. See Moore v. Board of Education of Fulton School, 836 S.W.2d 943 (Mo. banc 1992); State ex rel. Donelon v. Div. of Employment Security, 971 S.W.2d 869 (Mo. App. 1998). These decisions proceed from decisions of the United States Supreme Court. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the Cleveland Board of Education had fired security guard James Loudermill upon discovering that Mr. Loudermill’s statement in his employment application that he had never been convicted of a felony was false. Loudermill was given no chance to respond to the claim of dishonesty or to challenge the dismissal. However, under an Ohio statute, section 124.11, Loudermill could be terminated only for cause, and could obtain an administrative review of his discharge. Pursuant to that statute, Loudermill filed a petition for review with the Cleveland Civil Service Commission. After a hearing on the matter, the Commission upheld the dismissal. Loudermill then filed a suit in Federal District Court alleging that section 124.11 was unconstitutional because it did not provide him an opportunity to respond to the charges against him prior to his removal. The District Court dismissed the case for failure to state a claim, holding, among other things, that because the statute that created Loudermill’s property right in continued employment also provided the procedures for his discharge, and because those procedures were followed, Loudermill had been afforded all the process due him. The Sixth Circuit Court of Appeals, however, reversed the District Court’s holding, concluding that Mr. Loudermill’s “private interest in retaining employment, combined with the value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pretermination hearing.” The Supreme Court then granted certiorari and held that, although a state statute conferred a property interest to Loudermill, the procedure for deprivation of his property interest was not confined to the guarantees contained in that statute. Id. The Court said, “property cannot be deprived except pursuant to constitutionally adequate procedures.” Id. at 1493. Those constitutionally adequate procedures, the Court held, include a pretermination hearing at which it can be determined whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action against the employee. Id. at 1495. In Division of Family Services v. Cade, this court also held that a public employee who has a property interest in his employment (because of a contract or an ordinance, for example) has a right to notice and a hearing prior to having his employment interrupted. 939 S.W.2d 546, 552 (Mo. App. 1997). In Cade, the employee, Mr. Cade, received notice that he would be suspended without pay for twenty days while DFS investigated sexual harassment charges levied against him. In response, Cade appealed to the Missouri Personnel Board (PAB), alleging he was not given sufficient notice of the reason for the suspension. Ultimately, this court found Cade’s twenty-day suspension to be “invalid because he did not receive pre-suspension notice adequate to allow him to understand the nature of the allegations sufficiently to defend against them and oppose the suspension.” Id. at 554. While it was a statute, Section 36.370, that provided Cade with his property interest, and the statute required only that Cade be given a written statement specifically setting forth the reasons for his suspension, the court cited Loudermill as a basis for determining whether additional process was due him. Id. at 553. Thus, the Cade court reaffirmed the proposition that, where an employer proposes to extinguish its employee’s constitutionally protected property interest in continued employment, the employee must be accorded all the process due under the United States Constitution, not merely what may required by a statute. The process Cade was entitled to included notice sufficient to provide him enough information that would enable him to defend the allegations against him and to present conflicting evidence. Id.
A. Appellant’s property interest in continued employment “To have a property interest in a benefit, a person must have more that an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules
or understandings that secure certain benefits and that support claims of entitlement to those benefits.”
Id. (emphasis added). For employees to have a property interest in their employment they must have a claim of entitlement to it, and this usually arises from limitations put upon employees by statute or contract regarding termination of employees.
State ex rel. Donelon, 971 S.W.2d at 874. Likewise, we find that the City bestowed on Appellant such a claim of entitlement by its adoption of the Personnel Manual. The City’s Personnel Manual provided various employment guidelines for City employees such as Appellant. With regard to an employee’s post-termination rights, Section 9 of the Manual contained the following grievance procedures:
9.0 GENERAL STATEMENT To provide for an impartial review of action involving the dismissal of employees who believe that they have been dealt with unfairly or who have alleged that they have been discriminated against, the following grievance procedures are provided. 9.1 GRIEVANCE PROCESS 9.1.1 An employee who has a grievance about a dismissal or an alleged act of discrimination, should appeal the matter to the City Administrator within five working days of the action. 9.1.2 The City Administrator will render a decision on the appeal within five working days. He/she MAY appoint another unbiased representative to hear the appeal at his/her discretion. The decision of the City Administrator shall be final.
Sections 9.0 and 9.1 represented to City employees like Appellant that a reviewing arbitrator would render a finding as to whether the termination was unfair or discriminatory. That representation necessarily implies that the City has a self-imposed prohibition against terminating an employee either unfairly or discriminatorily. To comply with its own policy, the City could only terminate her in a fair and non-discriminatory manner. In its January 3, 1996 memo to Appellant, the Respondent City informed Appellant that “[u]nder the provisions of Section 9.1 of the City of Liberty Personnel Manual you have a right to appeal this matter to the City Administrator . . .” Appellant appealed from her termination by letter. In that letter, Appellant notified the City Administrator that the appeal was being pursued under section 9.1.1 of the Manual, which provides for an appeal for an employee complaining about “dismissal or an alleged act of discrimination.” Appellant thus notified the City that she considered her dismissal to be in the category of acts regarding which the City promised her protection. In its January 11, 1996 responsive letter to Appellant, the Respondent’s counsel stated, “[c]oncerning the appeal of the termination and the request for a grievance board hearing, I enclose a copy of Section 9 of the City’s Personnel Manual, titled ‘Grievance’. You will note that the City’s grievance policy grants me discretion to grant or deny a board hearing.” Finally, in its motion for summary judgment, the City stated that “[o]n January 11, 1996, pursuant to Section 9.1.2 of the Personnel Manual, the City Administrator of the City of Liberty rendered a final decision denying a hearing and upholding Hamby’s termination.” Thus, the City acknowledged both of the following: (1) at the time of Appellant’s termination, the City observed Section 9.1 of the Manual when making its personnel decision(s); and (2) a City employee could obtain administrative review of his or her dismissal pursuant Section 9.1 of that Manual. The promise of an “unbiased” administrative review again implies a promise to deal fairly and without discrimination. We note that the mere right to an “impartial review” did not change the nature of Appellant’s employment from at-will to an arrangement in which she had a property interest. “‘Property cannot be defined by the procedures provided for its deprivation any more than can life or liberty.” Loudermill, 105 S.Ct. at 1493. “The granting of a right to appeal does not of itself change an employee’s status as an employee at will.” Sadler v. Village of Bel-Ridge, 741 S.W.2d 889, 891 (Mo. App. 1987). Here, however, there is more than a mere right to review. Appellant’s property interest was created by the City’s implied promise that there are substantive criteria that proscribe dismissal, namely unfairness and discrimination. While the City may not have needed “good cause” to terminate Appellant, and it did not represent to Appellant that her employment was to last for any minimum duration, the City did represent to her that it would not terminate her in an unfair or discriminatory manner. Therefore, Appellant and the City had an understanding that Appellant’s continued employment would not be terminated unfairly or in a discriminatory way. Appellant relied on this understanding, which arose from the City’s own Personnel Manual. Accordingly, we find that the representations made in the City’s Personnel Manual created an “understanding” that was the genesis of a property interest protected by the Fourteenth Amendment. See Roth, 92 S.Ct. at 2709. We further find that by promulgating such a manual and fostering such an understanding, the Respondent City relinquished its freedom to terminate Appellant completely at will and agreed that Appellant would not be terminated in certain limited circumstances where termination was unfair or discriminatory. Thus, Appellant had a limited protected interest in her job to the extent that she would not be terminated unfairly or in a discriminatory manner.
B. Pre-deprivation Process Having determined that Appellant had a protectable interest in her job as a Liberty police officer, we must now decide whether the procedural safeguards afforded Appellant by the City were sufficient to meet the City’s constitutional burden. We hold that they were not. We note, first, that while a government may elect not to confer a property interest in public employment, once conferred, it cannot constitutionally authorize the deprivation of such an interest without appropriate procedural safeguards.
Loudermill, 105 S.Ct. at 1493. Following
Loudermill and
Cade, it matters not that the City may have given Appellant all the process due her under its Personnel Manual. Since the City granted Appellant a property interest in her job as a police officer, the City must also provide her all of the protections afforded under the United States Constitution before taking it away.
Article I, Section 10 of the Missouri Constitution and the Fourteenth Amendment to the United States Constitution both provide that no citizen shall be deprived of “life, liberty, or property, without due process of law; . . . .” The Missouri Supreme Court has said that “[t]he Due Process Clauses require that in order to deprive a person of a property interest, he must receive notice and an opportunity for a hearing appropriate to the nature of the case.”
Moore, 836 S.W.2d at 947. Thus, we now determine what notice and opportunity for a hearing is appropriate for Appellant’s termination as a Liberty police officer. In determining the sufficiency of the notice given, we examine whether it was sufficiently specific as to the time and nature of the incident(s) at issue so that the employee is certain as to the acts related to her termination.
Thomas v. Metzler, 978 S.W.2d 483, 487 (Mo. App. 1998). In this case, Appellant was notified of her termination in a letter from the Police Chief. The only reason given in the letter for the dismissal was the Chief’s statement that, “[t]his termination is based upon your failure to successfully complete your performance probationary period.” The letter contained no statement regarding a specific act(s) or omission(s) that constituted her alleged “failure.” It is abundantly clear that Appellant was not given notice of either the time or nature of any incident related to her dismissal. The purpose of the notice is to provide the employee with adequate information about the reasons for the dismissal to enable the employee to prepare a defense.
Id. Here, the notice was void of specifics, and Appellant had no information from which she could have prepared a defense. Thus, the notice does not meet due process standards. As for her constitutionally required opportunity to be heard, we use the balancing test in
Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 903, 47 L.Ed. 2d 18 (1976) for determining the process due from a governmental actor before it deprives a person of a property interest.
State ex rel. Donelon, 971 S.W.2d at 875. The
Mathews test balances three considerations: (1) the private interest involved; (2) the risk of an erroneous deprivation of that interest given the procedures being used; and (3) the government’s interests in resolving the matter without being unduly burdened by additional or substitute procedural requirements.
Id. We need not examine the
Mathews test in detail, because the lack of notice, as shown above, is sufficient to conclude Respondent is not entitled to summary judgment as a matter of law. Further, both
Donelon and
Cade provide a detailed exposition of the
Mathews test, and it need not be repeated here. We conclude that a
Mathews analysis would require Appellant to be given an opportunity to tell her side of the story before termination. The written notice given to Appellant was wholly inadequate to inform her of why she was being terminated, and she was given no opportunity to refute the City’s reasons for dismissal. Therefore, viewing the evidence in the light most favorable to Appellant, we find that Respondent City is not entitled to judgment as a matter of law because Appellant was not an at-will employee, but rather, had a limited property interest in continued employment and was entitled to notice of the reasons for her termination and an opportunity to tell her side of the story. The judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion. All concur. :::FOOTNOTES:::
FN1 All statutory references are to RSMo 1994, unless otherwise indicated.
Separate Opinion: None
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Opinion Missouri Court of Appeals Western District
Case Style: Beverly J. Hamby, Appellant, v. City of Liberty, Missouri, et al., Respondent. Case Number: 56352 Handdown Date: 08/03/99 Appeal From: Circuit Court of Clay County, Hon. David W. Russell Counsel for Appellant: Richard Helfand Counsel for Respondent: Jerome E. Brant Opinion Summary: Beverly J. Hamby appeals from the summary judgment issued by the circuit court.
REVERSED AND REMANDED. Court holds: Respondent granted Appellant a property interest in her continued employment with the Liberty Police Department by virtue of the Department’s adherence to its employee Personnel Manual. Appellant was entitled to notice of the specific reason(s) for her discharge and an opportunity to be heard concerning the matter. Appellant did not receive sufficient notice of said reasons.
Citation: Opinion Author: Albert A. Riederer, Judge Opinion Vote: REVERSED AND REMANDED. Spinden, P.J., amd Smith, JJ., concur.
