Johnson et al v. City of Shelby, Mississippi et al

Filing 107

MEMORANDUM OPINION granting 94 Motion for Summary Judgment. Signed by District Judge Michael P. Mills on 6/30/2015. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
TRACEY L. JOHNSON and DAVID JAMES,
JR.

PLAINTIFFS

VS.

CASE NO. 2:10-cv-00036-MPM-SAA

CITY OF SHELBY, MISSISSIPPI
and HAROLD BILLINGS

DEFENDANTS

MEMORANDUM OPINION
Before the court is Defendant City of Shelby’s (the “City”) motion for summary
judgment. Plaintiffs Tracey L. Johnson and David James, Jr. (collectively “Plaintiffs”) have
responded, and Defendant replied. Having considered the filings and relevant law, the court is
prepared to rule.
This case began in 2010 when Plaintiffs Tracey Johnson and David James, Jr. filed a
constitutional claim for deprivation of property without due process against the City of Shelby,
Mississippi and filed a malicious interference with employment claim against Harold Billings in
his individual capacity. This court granted defendants’ motion for summary judgment because
the constitutional claim was not brought through 42 U.S.C. § 1983 and the malicious interference
claim did not comply with the pre-suit requirements of the Mississippi Tort Claims Act.
Plaintiffs appealed the judgment and, in November 2013, the 5th Circuit affirmed this court’s
opinion in full. Plaintiffs subsequently appealed to the United States Supreme Court, which
reversed the 5th Circuit’s affirmance on the plaintiffs’ constitutional claim. In particular, the
Supreme Court reversed 5th Circuit precedent that, to bring a constitutional claim against a
governmental entity, a plaintiff must specifically set forth in the complaint that the claim was
being pursued through 42 U.S.C. § 1983. The Supreme Court did not address alternative grounds

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for dismissal or the dismissal of claims against Billings for failure to comply with the MTCA.
Instead, the Supreme Court remanded the case for further proceedings consistent with its
opinion. The only remaining claim is Plaintiffs’ constitutional claim against the City of Shelby,
Mississippi for deprivation of property without due process.
FACTS
Tracey L. Johnson and David James, Jr. were hired as police officers for the City of
Shelby, Mississippi in 2007. In September of 2009, the City’s Board of Aldermen, which has
sole authority over the City’s employment decisions, terminated Johnson and James, for
violation of City residents’ rights and police procedure. Among the complaints against Plaintiffs
were a warrantless arrest of a woman accused of stealing a beer from a convenience store and
allegations of profiling and harassment by the residents of an apartment complex, who filed a
petition to the Board of Aldermen calling for the termination of Plaintiffs. After the Board voted
to terminate Plaintiffs, James requested and obtained a grievance hearing from the City. The
Board upheld their terminations.
The City of Shelby has a city employee handbook, covering police officers, adopted in
1997 and revised in 2003, that 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.” Plaintiffs, in fact, did not have an employee contract with the City. In 2006, the City
also adopted the City of Shelby Police Department Standard Operating Procedures Manual,
which provided that officers were responsible for complying with the city employee handbook.
In 2008, however, the Board of Alderman adopted a new Standard Operating Procedures Manual
which included policies and procedures the police department should follow in the case of
disciplinary action, including termination. Plaintiffs claim that language in the 2008 manual

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provides that police officers may only be terminated for cause. Plaintiffs do not point to specific
language in the manual, but instead seem to rely on the overall scheme and structure of the
manual, which lays out the reasons and procedures for disciplinary action. In September of 2009,
the Board of Aldermen rescinded the 2008 manual and readopted the previous 2006 manual.
This readoption occurred during the same meeting, but before, the termination of Plaintiffs.
While the Board may have shown bad form in their pursuit of legal advantage, such action is not
fatal to defendant’s motion.
Plaintiffs argue they had a property interest in continued employment with the City and
that they were deprived of that property interest without due process. Plaintiffs claim that, due to
the policies and procedure in effect during their employment (but rescinded before their
termination), they could only be discharged for a legitimate cause and upon recommendation of
the police chief. Therefore, Plaintiffs maintain, they had a reasonable expectation of continued
employment.
The City responds that Plaintiffs did not have employment contracts with the City and
therefore their employment was at-will employment. The City also argues that the policies the
plaintiffs relied on were rescinded prior to Plaintiffs’ termination, and that, even if the relied
upon policies were in place at the time of Plaintiffs’ termination, Plaintiffs would still not have a
property interest because the City of Shelby Employee 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.
At all times during employment with the City of Shelby, employees shall retain
the right to leave employment if they choose. Likewise, we retain the right to
separate any employee from employment at any time with or without notice.

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STANDARD OF REVIEW
Summary judgment is appropriate when there is “no genuine issue of material fact and
the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The facts and
evidence are taken in a light most favorable to the non-moving party. LeMaire v. La. Dep't of
Transp. & Dev., 480 F.3d 383, 386 (5th Cir.2007).
A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable
jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Summary judgment is
appropriate if “critical evidence is so weak or tenuous on an essential fact that it could not
support a judgment in favor of the non-movant.” Armstrong v. City of Dallas, 997 F.2d 62, 67
(5th Cir. 1993). A party opposing a properly supported motion for summary judgment “may not
rest upon the mere allegations or denials of his pleading, but … must set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. If the nonmoving
party fails to meet this burden, the motion for summary judgment must be granted.
ANALYSIS
The threshold issue in this case is whether Plaintiffs had a property interest in continued
employment with the City, which would trigger the need for due process. Board of Regents v.
Roth, 408 U.S. 564, 569-70 (1972). The existence of a property right in employment is
determined by state law. Johnson v. Southwest Miss. Reg’l Med. Ctr., 878 F.2d 858 (5th Cir.
1989) (citations omitted). A property interest may be created by statute, written contract, or “a
‘mutually explicit understanding’ enforceable under state law as an implied contract.” Id. (citing
Perry v. Sindermann, 408 U.S. 593, 601-02 (1972)). The Mississippi Supreme Court has held
that at-will employees have no constitutionally protected property interest in continued

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employment. Levens v. Campbell, 733 So.2d 753, 763 (Miss. 1999) (“Because [plaintiff] was an
employee at will, she had no valid claim of entitlement in employment”).
In McMillian v. City of Hazlehurst, the 5th Circuit ruled that Mississippi municipal police
officers are at will employees without a protected property interest in continued employment.
620 F.2d 484, 485 (5th Cir. 1980) (citing MISS. CODE ANN. § 21-3-5; Sartin v. City of Columbus
Util. Comm’n, 421 F.Supp. 393 (N.D. Miss. 1976)). Mississippi common law also holds to a
strong presumption that employment is at will. Relliford v. Holly Springs, MS, 1995 WL
1945432, at *4 (N.D. Miss. Aug. 21, 1995) (citing Perry v. Sears, Roebuck & Co., 508 So.2d
1086, 1088 (Miss. 1987)). In general these cases stand for the proposition that municipal police
officers do not have a property interest in their employment.
However, employers can adopt policies creating such a property right. In this instance,
Plaintiffs argue City policies concerning police created a protected property right. In Bobbitt v.
Orchard, Ltd. the Mississippi Supreme Court held an employee handbook could create employer
obligations. 603 So.2d 356, 361 (Miss. 1992); see also Robinson v. Bd. of Trs. of East Cent. Jr.
Coll., 477 So.2d 1352 (Miss. 1985). In making its decision the court framed the issue asking:
when an offense specifically covered by the employer’s own manual
provides no more severe disciplining than a warning or counseling of the
employee, may the employer pay no attention to the manual and fire the
employee instead?
Id. The court answered its question “[w]e hold the employer to its word.” Id.
Despite this holding, language in the employment manual disclaiming a contractual
relationship is fatal to Plaintiffs’ arguments and Plaintiffs’ at-will employment status is
preserved. In Bobbitt there was no express disclaimer of a contractual relationship between the
parties. Because of the absence of a disclaimer, the Bobbitt court construed the employment

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manual as part of an employment contract. The Bobbitt court distinguished two similar cases1
where the employee was held to be an at-will employee in part because of an express provision
in the employment manual that declared the employee an at-will employee.
In the instant case, we find a similar situation. The City’s employee handbook, which
applies to all employees of the City, specifically disclaims a contractual relationship: “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.”
Where there is “something in the employee handbook disclaiming a contract of
employment, the rule developed in Bobbitt does not apply.” McDaniel v. Mississippi Baptist
Med. Ctr., 869 F.Supp. 445, 453 (S.D. Miss. 1994). Further, “disclaimers in employees’ manuals
having their purpose of preserving the employment at-will relationship cannot be ignored.”
McCrory v. Wal-Mart Stores, Inc., 755 So.2d 1141, 1144-45 (Miss.Ct.App. 1999).
In the instant case, the 2008 policy manual appears to have been hastily copied from a
sister city’s manual, for reasons unknown and unfathomable by this court. For instance, the 2008
manual, at one point, identifies the city of Cleveland police department as the applicable agency.
Nevertheless, the 2008 manual provides guidance on how to handle disciplinary actions taken by
the City of Shelby. Plaintiffs contend that these policies and procedures provide that an officer
may only be terminated “for cause.” However, the court does not find that these policies were
intended to override the officers’ at-will status as employees. In fact, the language grants
discretion to the department: “In cases of serious misconduct such as major breaches of policy or
violations of law, procedures contained in this policy may be disregarded.” The 2008 manual

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See Shaw v. Burchfield, 481 So.2d 247 (Miss. 1985); Perry v. Sears, Roebuck & Co.,508 So.2d 1086 (Miss. 1987).

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contains myriad instances of permissive language as well: “Progressive discipline may
include…” and “Discharge from the department may be imposed for a first offense…” (emphasis
added). Discretionary and permissive language in an employment manual, as is the case here,
does not override the employees’ at-will status. See, e.g. Senseney v. Miss. Power. Co., 914
So.2d 1225, 1229 (Miss.Ct.App. 2005). Due to this discretionary language and the express
language in the City employee manual stating that city employees are at-will employees,
Plaintiffs’ at-will employment status is maintained. Therefore, Plaintiffs do not have a property
interest in their continued employment.
This finding is consistent with a number of cases in Mississippi. See Hartie v. Packard
Elec., 626 So.2d 106 (Miss. 1993) (holding that disclaimer in handbook preserved employer’s
right to terminate employee at will); Perry v. Sears, Roebuck & Co., 508 So.2d 1086 (Miss.
1987) (holding that an employee handbook cannot be considered a contract between employer
and employee where it explicitly states that the employee may be terminated at will); McCrory v.
Wal-Mart, 755 So.2d 1141 (Miss.Ct.App. 1999) (reasoning that disclaimers in employee
manuals have the purpose of preserving the employment at-will doctrine); Byrd v. Imperial
Palace of Miss., 807 So.2d 433 (Miss. 2001) (holding employee handbook with disclaimer does
not create a contractual obligation that would override the at-will doctrine). This finding is also
consistent with a prior holding by this court in Hall v. Bolivar Cnty., No. 2:08-CV-174, 2010 WL
3861078, at *4 (N.D. Miss. Sept. 24, 2010). In Hall v. Bolivar Cnty. this court found that an
employment manual’s language amounted to a disclaimer preserving the at-will status of its
employees.
The City is correct in asserting that Plaintiffs were at-will employees and did not have a
property interest in continued employment. For the foregoing reasons defendant’s motion for
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summary judgment [94] will be GRANTED. A separate judgment will be entered this date,
pursuant to Fed. R. Civ. P. 58.
So ORDERED this the 30th day of June, 2015

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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