Brown v. Nero et al

Filing 55

ORDER GRANTING IN PART AND DENYING IN PART 36 Motion for Summary Judgment. Signed by Judge Robert Pitman. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
STEPHANIE BROWN,
Plaintiff,
v.
WAYNE NERO and THE CITY OF
GEORGETOWN,
Defendants.

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1:15-cv-965-RP

ORDER
Before the Court are Plaintiff’s Motion for Partial Summary Judgment, (Dkt. 36);
Defendants’ Response, (Dkts. 39 & 43); Plaintiff’s Reply, (Dkt. 46); and Defendants’ Sur-repy, (Dkt.
48). For the following reasons, the Court grants Plaintiff’s motion in part and denies it in part.
I.

Background
Plaintiff Stephanie Brown (“Brown”) filed this action on October 28, 2015, naming as
defendants the City of Georgetown (“the City”) and Georgetown’s police chief, Wayne Nero
(“Chief Nero”). Brown was previously a police officer with the Georgetown Police Department
(“the Department”). In 2012, she ended a romantic relationship with another police officer, Eric

Poteet. Following the breakup, Poteet filed a complaint with the Georgetown Police Department,
alleging that Brown had been taking his prescription pain medications and had ingested mescaline, a
controlled substance. In January 2013, the Department investigated these allegations. Following the
investigation, Chief Nero determined that Brown had taken Poteet’s prescription drugs, ingested
mescaline, and had been untruthful when questioned about her use of drugs. On June 11, 2013,
Chief Nero indefinitely suspended Brown, effectively terminating her employment.

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Because it was considered a “disciplinary” action, Brown had the right to appeal her
suspension to an independent hearing examiner under the Texas Fire Fighters’ and Police Officers’
Civil Services Act (“the Civil Services Act”). See Tex. Loc. Gov’t Code §§ 143.053, 143.057. Brown
invoked her right to appeal and a hearing was held, which Chief Nero attended. After the hearing
but prior to the issuance of the hearing examiner’s decision, Chief Nero initiated a meeting with the
Williamson County Attorney and the Williamson County District Attorney and informed them of
Brown’s alleged misconduct. In response, the two prosecutors issued a joint “no-confidence” letter
to Chief Nero on October 31, 2013, informing him that their offices would no longer accept cases in
which Brown was involved as they believed her past untruthfulness undermined her ability to testify
as a witness.
On November 1, 2013, the hearing examiner issued his decision. He determined that Brown
had used pain medications prescribed for Poteet. However, he also determined that Brown had her
own prescription for the medication and did not use the medication for recreational purposes. The
hearing examiner also determined that the City had failed to meet its burden of proof with respect to
the charge that Brown had taken mescaline and the charge that she had been untruthful during the
investigation. The hearing examiner reduced Brown’s suspension to fifteen days and ordered her
reinstated with back pay and benefits.
On November 7, 2013, the City reinstated Brown. However, the next day, the City again
terminated Brown. In a letter informing Brown of her termination, Chief Nero stated that, in light of
the no-confidence letter sent by the county and district attorneys, Brown was unable to testify in
court and therefore could not perform an essential job function. Chief Nero also informed Brown
that because her termination was “non-disciplinary,” she did not have a right to appeal under the
Civil Services Act. Brown nonetheless attempted to appeal her termination to the City’s Civil Service

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Commission. Her appeal was denied because her termination was not for disciplinary reasons but
rather because she could not perform an essential job function.
Brown then filed a lawsuit in state court, seeking a declaratory judgment stating that her
termination was a disciplinary suspension triggering a right to appeal under the Civil Services Act.
The state district court granted the defendants’ plea to the jurisdiction, holding that it lacked
jurisdiction because the Civil Services Act does not allow an officer to appeal a non-disciplinary
termination. Brown appealed. The court of appeals reversed, holding that Brown’s termination was a
disciplinary suspension, and remanded the case so that Brown could pursue an administrative
appeal. Brown v. Nero, 477 S.W.3d 448, 452 (Tex. App. 2015), review denied (Jan. 8, 2016). The parties
then settled the state court action. As part of the settlement, Brown has been reinstated and
provided full back pay. 1
In this federal action, Brown asserts causes of action, under 42 U.S.C. § 1983, for violations
of her Fourteenth Amendment rights to procedural and substantive due process and a cause of
action under state law for defamation. The Court previously dismissed her defamation claim. Brown
now moves for summary judgment on her procedural and substantive due process claims.

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(See Defs.’ Sur-reply, Dkt. 48, at 2 n.1 (“Defendants would inform the Court that Plaintiff has been
reinstated to her position with the Georgetown Police Department with full back pay and benefits in
settlement of the state court case.”)). At first blush, the state court settlement providing Brown
reinstatement and full back pay would seem to render this action moot. However, in addition to
back pay, Brown is seeking compensatory damages for “irreparable harm to [her] reputation, and
extreme mental anguish, pain and suffering,” among other alleged injuries. (Am. Compl., Dkt. 14, ¶
32). Brown’s prayer for damages above and beyond back pay constitutes an ongoing, justiciable
controversy. See Morehouse v. Jackson, 614 F. App'x 159, 164 (5th Cir. 2015) (holding that a plaintiff’s
procedural due process claims were rendered moot by resolution of parallel state proceedings, but
would have remained justiciable if the plaintiff had elected to seek damages); see also Wilson v. Taylor,
658 F.2d 1021, 1032–33 (5th Cir. 1981) (holding that a plaintiff may recover damages for emotional
distress and reputational damage incident to a deprivation of due process in the employment
context).

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II.

Summary Judgment Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure

only “if the movant shows there is no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 254 (1986).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the moving party bears the burden of persuasion at trial, it must also “support its
motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at
trial.” Id. at 331.
Once the movant carries its initial burden, the burden shifts to the nonmoving party to
establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 585–87 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995).
The non-movant must respond to the motion by presenting evidence indicating there is a genuine
issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may
satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence.
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court views the summary judgment
evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir.
1993). “After the non-movant has been given the opportunity to raise a genuine factual issue, if no
reasonable juror could find for the non-movant, summary judgment will be granted.” Westphal, 230
F. 3d at 174.

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III.

Discussion
Brown moves for partial summary judgment on the issue of whether the City is liable for

violating her Fourteenth Amendment rights to procedural and substantive due process. The Court
first addresses whether Brown’s procedural due process rights were violated. The Court then
addresses whether her substantive due process rights were violated. Finally, the Court inquires
whether, assuming her due process rights were violated, Brown has demonstrated that the violation
was caused by an official policy or custom, as is necessary to hold a municipality liable under Monell
v. New York City Department of Social Services, 436 U.S. 658 (1978).
A. Procedural Due Process
If a public employee has been conveyed a property interest in continued employment, then
the employee cannot be terminated without first being afforded constitutional due process. See Bd. of
Regents v. Roth, 408 U.S. 564 (1972). Property interests “are not created by the Constitution.” Id. at
577. “Rather, they are created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law.” Id. “A public employee has a property
interest in her job if she has a legitimate claim of entitlement to it, a claim which would limit the
employer's ability to terminate the employment.” Giles v. Shaw Sch. Dist., 655 F. App'x 998, 1004 (5th
Cir. 2016) (quoting Johnson v. Sw. Miss. Reg’l Med. Ctr., 878 F.2d 856, 858 (5th Cir. 1989)). A property
interest in continued employment “can be created by state statute or by contract.” Id. “Once a state
has conferred a property right, it cannot constitutionally deprive such an interest without procedural
safeguards.” Schaper v. City of Huntsville, 813 F.2d 709, 714 (5th Cir. 1987).
Here, Brown contends—and Defendants do not dispute—that she had a protected property
interest in continued employment as a police officer with the Georgetown Police Department.
Brown’s property interest in continued employment is created by the Civil Services Act, which states
that its purpose is to ensure that police officers and fire fighters “have permanent employment
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tenure as public servants.” Tex. Loc. Gov’t Code § 143.001; see also City of Beaumont v. Spivey, 1 S.W.3d
385, 388 (Tex. App.—Beamont 1999, pet. denied) (Under Chapter 143 . . . a police officer has
certain due process rights that are triggered whenever the officer is subjected to disciplinary action
such as suspension or, in this case, dismissal.”). Accordingly, the only question for the Court is
whether Brown was provided the minimum constitutionally required process.
The parties dispute the relevance of state law in determining how much process is
constitutionally required. Brown argues that if the state statutorily promises tenured employees
certain procedural rights, then the Constitution requires the state to live up to its promise.
Accordingly, Brown contends that if the City, in terminating her employment, violated the Civil
Services Act, it necessarily deprived her of constitutionally required procedural due process. Brown
relies heavily on the Fifth Circuit’s opinion in, Ferguson v. Thomas, in which the court of appeals
stated, “When published rules and regulations establish a particular statutory procedure for the
termination of a teacher's employment, they may add to the constitutional minimum. If they do,
such regulations must also be followed.” 430 F.2d 852, 856 (5th Cir. 1970). However, in the nearly
fifty years since the Fifth Circuit made this statement, it has clearly reversed course. In Levitt v. the
University of Texas at El Paso, the Fifth Circuit clarified its holding in Ferguson: “The additions to the
‘constitutional minimum’ we referred to in Ferguson arise only when the procedures promised are
denied in such a manner that the constitutional minimum is itself denied or an independent
deprivation is effected.” 759 F.2d 1224, 1230 (5th Cir. 1985). The Levitt court held that “[t]here is
not a violation of due process every time a . . . government entity violates its own rules. Such action
may constitute a breach of contract or violation of state law, but unless the conduct trespasses on
federal constitutional safeguards, there is no-constitutional deprivation.” Id. The Fifth Circuit has
repeatedly reaffirmed this holding. See, e.g. Dearman v. Stone Cty. Sch. Dist., 832 F.3d 577, 584 (5th Cir.
2016) (“The School District may have violated state law when denying Dearman an official
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nonrenewal hearing. Given, however, that Dearman did receive both notice and an opportunity to
respond, this state-law violation does not also amount to a violation of federal due process.”); Brown
v. Texas A & M Univ., 804 F.2d 327, 335 (5th Cir. 1986) (“[T]he University's admitted failure to
comport with its internal pretermination procedures does not by itself amount to a violation of the
Due Process Clause. The failure of a state agency to comply with its internal regulations is
insufficient as a matter of law to establish a violation of Due Process, because constitutional minima
nevertheless may have been met.”).
Thus, Brown’s contention that Defendants violated the Civil Service Act is inapropos. The
only relevant question is whether the procedure the City afforded Brown met the federal
constitutional minimum. Generally, procedural due process simply requires a person deprived of a
liberty interest to be provided “an opportunity to be heard at a meaningful time and in a meaningful
manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976). Even under the more accommodating
federal constitutional standard, Brown argues she was deprived of adequate due process. She asserts
that she was never provided a meaningful opportunity to be heard, either prior to her November 8th
termination or following her termination. The Court begins with her pretermination claim and then
moves to her post-termination claim.
1. Pretermination Due Process
In Cleveland Board of Education v. Loudermill, the Supreme Court held that procedural due
process requires “‘some kind’ of hearing prior to the discharge of an employee who has a
constitutionally protected property interest in [her] employment.” 470 U.S. 532, 542 (1985).
However, “the pretermination ‘hearing,’ though necessary, need not be elaborate.” Id. at 545. The
pretermination hearing is simply “an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to believe that the charges against the
employee are true and support the proposed action.” Id. at 545–546. “The tenured public employee
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is entitled to oral or written notice of the charges against him, an explanation of the employer's
evidence, and an opportunity to present his side of the story.” Id. at 546; accord Browning v. City of
Odessa, Tex., 990 F.2d 842, 844 (5th Cir. 1993) (“[A]n informal hearing which allows the employee to
give [her] version of the facts sufficiently hedges against an erroneous dismissal and likewise satisfies
the requirements of due process.”).
Defendants believe Brown was provided an opportunity to be heard consistent with the
requirement enunciated in Loudermill. On October 31, 2013, Chief Nero sent Brown and her
attorney a letter informing them that, even if the hearing examiner were to reverse his previous
indefinite disciplinary suspension, he was considering terminating Brown’s employment for nondisciplinary reasons. (Oct. 31 Letter, Dkt. 43-1). The letter advised that because the Williamson
County Attorney and the Williamson County District Attorney would no longer allow Brown to
testify, he believed Brown was no longer capable of performing an essential function of her job. (Id.)
Chief Nero attached a copy of the no-confidence letter sent to him by the county prosecutors. (Id. at
2). Chief Nero further stated that he intended his letter to serve as “written notification” of the
potential non-disciplinary action and that he was willing to give Brown “an opportunity to provide
information [she] would want [him] to consider prior to me making a final decision.” (Id. at 1). The
letter concluded by scheduling a meeting for November 6, 2013 in Chief Brown’s office. (Id.)
Brown was thus provided (1) written notification of the charges against her, (2) a copy of the
no-confidence letter on which those charges were based, and (3) an opportunity to meet with Chief
Nero and provide her side of the story. This pretermination process, while minimal, is consistent
with the requirements set forth in Loudermill. See Browning, 990 F.2d at 844–45 (finding no procedural
due process deprivation where a firefighter was provided notice of the reasons for his dismissal and
an informal meeting with the department’s chief). Brown elected not to attend the meeting with
Chief Nero. (See Nov. 4 Letter, Dkt. 36-17). However, her decision not to avail herself of the
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process afforded to her does not constitute a deprivation of procedural due process. Browning, 990
F.2d at 845 n.7 (“[O]ne who fails to take advantage of procedural safeguards available to him cannot
later claim that he was denied due process.”).
The Court, therefore, concludes that Brown has failed to demonstrate beyond a genuine
issue of fact that the City deprived her of constitutionally adequate pretermination procedural due
process.
2. Post-termination Due Process
Brown argues that the reason so little pretermination process is required is that the case law
all assumes the employee will be afforded robust post-termination process. On this point, Brown is
unquestionably correct. In Loudermill, the Supreme Court expressly stated that its holding requiring
only minimal pretermination process “rests in part on the provisions in [state] law for a full posttermination hearing.” 470 U.S. 532 at 546. The Court’s conclusion that “the pretermination ‘hearing’
. . . need not be elaborate” was predicated on the fact that the discharged employee was “later
entitled to a full administrative hearing.” Id. at 546. As the Fifth Circuit has explained, under
Loudermill, “pretermination process is limited” only “if a governmental employer provides a full posttermination hearing.” Browning, 990 F.2d at 844; accord Schaper v. City of Huntsville, 813 F.2d 709, 716
(5th Cir. 1987) (“But in the event of minimal pretermination safeguards, the substantial private
interest one has in not being deprived of his livelihood requires a full hearing after termination.”).
Here, Brown was provided only an opportunity for a brief, informal meeting with Chief Nero,
pretermination process which satisfies but does not exceed the constitutional minimum. Thus,
Loudermill requires that she be provided robust post-termination process.
The record makes clear that Browning was not provided any post-termination process. Both
the letters Chief Nero sent to Brown with regard to her non-disciplinary termination made clear that
she did not have a right to appeal. Chief Nero’s October 31 letter stated, “Because your inability to
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meet the job requirements does not involve ‘discipline,’ §§ 614.021–.023 of the Texas Government
Code do not apply here.” (Oct. 31 Letter, Dkt. 43-1, at 1). Chief Nero’s November 8 letter similarly
stated, “Since this is a non-disciplinary termination, you do not have appeal rights under Chapter
143 of the Texas Local Government Code.” (Nov. 8 Letter, Dkt. 36-7, at 2). Brown nonetheless
attempted to appeal her termination. In response, Elizabeth Jones, the City’s Interim Civil Service
Director, sent Brown’s lawyer a letter declining to hear the appeal. The letter stated, “Absent
disciplinary action against Ms. Hoskins Brown . . . [she] is not entitled to appeal before the Civil
Service Commission. . . . Because this termination was not based on disciplinary action, a hearing
under the civil service statute is not available to Ms. Hoskins Brown.” (Nov. 21 Letter, Dkt. 36-20).
In denying Brown a post-termination administrative hearing, the City clearly deprived Brown of her
constitutional procedural due process rights, as articulated in Loudermill.
The Court notes that Brown, after lengthy state court litigation, was ultimately successful in
obtaining a right to an appellate hearing before the Civil Service Commission. Arguably, Brown’s
ability to successfully seek relief in state court indicates that state law did provide her adequate posttermination process. Indeed, in some instances the Fifth Circuit has found that the availability of
judicial review is sufficient to satisfy the constitutional requirement of post-termination procedural
due process. For example, in Murphy v. Collins, the court of appeals held that the confiscation of a
prisoner’s property did not require pre-deprivation due process, because the tort of conversion
provided the prisoner a post-deprivation remedy in state court. 26 F.3d 541, 543 (5th Cir. 1994).
However, in the employment context, the Supreme Court has clearly stated that procedural due
process requires that a pretermination opportunity to respond be “coupled with post-termination
administrative procedures.” Loudermill, 470 U.S. at 546-48 (emphasis added). The law is thus clear that,
at least in the employment context, judicial review alone is insufficient: a discharged employee is
entitled to some form of post-termination “administrative review.” Id. at 535.
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Moreover, the Supreme Court has also made clear that a post-termination hearing must be
provided “at a meaningful time.” Id. at 547 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Here, the state appellate court’s decision that Brown was entitled to a hearing before the City’s Civil
Service Commission came nearly two years after she first attempted to appeal her termination. By
denying Brown a timely administrative appeal and requiring her to seek relief in state court, the City
imposed on Brown an “unreasonably prolonged” process. Id. The Court comfortably concludes
that being forced to endure protracted state court litigation simply to earn a right to an
administrative hearing is not the sort of timely post-termination process envisioned by Loudermill and
its progeny.
In sum, procedural due process requires that a tenured public employee be provided a full
administrative hearing to challenge the termination of her employment. The undisputed evidence
before the Court makes clear Brown was denied this right. Accordingly, the Court finds that Brown
should be granted summary judgment on the issue of whether the City violated her right to posttermination procedural due process.
B. Substantive Due Process
The Court now turns to Brown’s claim for violations of her substantive due process rights.
In contrast to procedural due process, substantive due process “protects individual liberty against
‘certain government actions regardless of the fairness of the procedures used to implement them.’”
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992) (quoting Daniel v. Williams, 474 U.S.
327, 331 (1986)). A tenured public employee has a substantive due process right to be free from
“arbitrary and capricious” decision-making. E.g. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984).
“To prove a substantive due process violation in this context, an employee must show that a public
employer's decision ‘so lacked a basis in fact’ that it could be said to have been made ‘without

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professional judgment.’” Jones v. Louisiana Bd. of Sup'rs of Univ. of Louisiana Sys., 809 F.3d 231, 240 (5th
Cir. 2015) (quoting Texas v. Walker, 142 F.3d 813, 819 (5th Cir.1998)).
Brown submits evidence suggesting that Chief Nero acted in an arbitrary and capricious
manner when he initiated a meeting with the county and district attorneys to inform them that
Brown was under investigation for untruthfulness and to solicit a no-confidence letter, despite
knowing that the independent hearing examiner had expressed skepticism of the City’s allegations
against Brown and was not likely to find that she had been untruthful. Brown argues that Chief
Nero’s decision to terminate her lacked a basis in fact as the decision was made in reliance on a noconfidence letter that he intentionally solicited as a clever means of circumventing the Civil Service
Act and did not honestly reflect the views of its authors. Some of the evidence Brown submits in
support of this contention is compelling. For example, the Williamson County District Attorney has
admitted that she issued the no-confidence letter simply “to be supportive of the Department” and
described her issuance of the letter as a “crafty” way “to get around . . . longstanding processes put
in place by the agencies and the voters.” (May 31 Letter, Dkt. 36-15).
On the other hand, Defendants point to evidence contradicting Plaintiff’s characterization of
the events leading to her non-disciplinary termination. In Chief Nero’s affidavit, he attests that the
purpose of his meeting with the district and county attorneys was not to solicit a no-confidence
letter, but “to discuss their expectations of the Georgetown Police Department regarding Brady
exculpatory information.” (Nero Aff., Dkt. 36-13, ¶ 3). As part of this conversation, he provided
them the findings of the Department’s internal investigation of Brown. (Id.) Chief Nero’s affidavit
implies, although it does not explicitly state, that the district attorney and county attorney sent the
no-confidence letter on their own initiative, after reviewing the findings of the internal investigation.
(Id. ¶ 4). Chief Nero further attests that after he received the hearing examiner’s decision reinstating
Brown, he discussed the decision with the district and county attorneys and asked them if they
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wanted to rescind their no-confidence letter, but they “declined to rescind the letter [because] their
opinion regarding the credibility of [Brown] was unchanged.” (Id. ¶ 8).
If Chief Nero’s characterization of the relevant events is proven true, it would suggest the
City had a strong factual basis for its decision to terminate Brown and that its decision was,
therefore, neither arbitrary nor capricious. Accordingly, the Court concludes that there is a genuine
issue of fact that precludes granting summary judgment on Brown’s substantive due process claim.
C. Municipal Liability
Finally, the Court turns to the issue of whether the City 2 is liable for any violation of
Brown’s due process rights. “A municipality is almost never liable for an isolated unconstitutional
act on the part of an employee; it is liable only for acts directly attributable to it ‘through some
official action or imprimatur.’” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009)
(quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001)). “To establish municipal
liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the
municipal policymaker (3) was the moving force behind the violation of a constitutional right.” Id.
“[M]unicipal liability may be imposed for a single decision by municipal policymakers” as long as the
decision is made by an “official or officials responsible for establishing final policy with respect to
the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 484 (1986). The
question of “whether an official has been delegated final policymaking authority is a question of law
for the judge, not of fact for the jury.” Gros v. City of Grand Prairie, 181 F.3d 613, 617 (5th Cir. 1999)
(citing Jett v. Dallas Independent School District, 491 U.S. 701 (1989)). District courts are directed “to
2

In her Amended Complaint, (Dkt. 11), Brown does not state in what capacity she is suing
Defendant Wayne Nero. However, in her motion for partial summary judgment she clarifies that she
suing him only in his official capacity as the City’s police chief. Suing a municipal employee in his
official capacity is the same as suing the municipality itself. See, e.g. Sanders v. English, 950 F.2d 1152,
1159 (5th Cir. 1992) (“Of course, a suit against these defendants in their official capacities is
tantamount to a suit against the City itself.”).

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consider state and local positive law as well as evidence of the [c]ity's customs and usages in
determining which [c]ity officials or bodies had final policymaking authority over the policies at issue
in [the] case.” Id. at 616.
“The fact that a particular official—even a policymaking official—has discretion in the
exercise of particular functions does not, without more, give rise to municipal liability based on an
exercise of that discretion.” Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 602 (5th Cir. 2001); see also
Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.1984) (“[T]he delegation of policymaking authority
requires more than a showing of mere discretion or decisionmaking authority on the part of the
delegee.”) Rather, the municipal official “must also be responsible for establishing final government
policy respecting such activity before the municipality can be held liable.” Beattie, 254 F.3d at 602.
Critically, for liability to arise, the municipal official must have policymaking authority with regard to
the specific type of decision at issue:
Thus, for example, the County Sheriff may have discretion to hire and fire employees
without also being the county official responsible for establishing county
employment policy. If this were the case, the Sheriff's decisions respecting
employment would not give rise to municipal liability, although similar decisions with
respect to law enforcement practices, over which the Sheriff is the official
policymaker, would give rise to municipal liability. Instead, if county employment
policy was set by the Board of County Commissioners, only that body's decisions
would provide a basis for county liability. This would be true even if the Board left
the Sheriff discretion to hire and fire employees and the Sheriff exercised that
discretion in an unconstitutional manner; the decision to act unlawfully would not be
a decision of the Board.
Id. Generally, if a municipal official’s decisions in a particular context are subject to review
by a higher authority, then the official is not considered final policymaking authority with
regard to those decisions. See Worsham v. City of Pasadena, 881 F.2d 1336, 1240-41 (5th Cir.
1989) (holding the existence of a council with the authority to review a city mayor's decision
to terminate a municipal employee, precluded a finding that the mayor possessed final
policymaking authority over employment decisions). However, the “continuous refusal to
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exercise some theoretical authority to review a municipal official's policy decisions will, at
some point, establish the municipal official as the final policymaking authority by custom or
usage having the force of state law.” Gros, 181 F.3d at 616.
Brown seeks to hold the City liable for the decision to terminate her employment on
November 8, 2015 for non-disciplinary reasons. It is undisputed that this decision was made
and implemented by Chief Nero. The question for the Court then is whether, as a matter of
state or local law or the customs of the City, Chief Nero has been afforded the responsibility
to make municipal policy with regard to non-disciplinary employment decisions. Brown does
not point to any law, which expressly affords the police chief this sort of policymaking
authority. Brown does cites multiple cases where courts have held that a police chief is a final
policymaker with regard to law enforcement decisions. See, e.g. Pineda v. City of Houston, 291
F.3d 325, 330 (5th Cir. 2002); Brown v. Bryan Cty., OK, 219 F.3d 450, 454 (5th Cir. 2000). But
these cases are not on point both because they deal with law enforcement decisions, not
employment decisions, and because the precise distribution of policymaking authority may
differ from municipality to municipality.
Brown does submit some evidence that Chief Nero has final policymaking authority
in the employment context. Specifically, Brown points to Chief Nero’s deposition testimony,
in which he was asked, “[A]re you the policy maker for the Georgetown Police
Department?” (Nero Dep., Dkt. 46-1, at 44:14–20). He responded, “Yes.” (Id.) He was
then asked, “When you terminated Brown the second time, did you intend for your decision
to be the final decision on the case?” (Id.) He responded, “From the police department’s
perspective, yes.” (Id.) However, this evidence is insufficient to establish that by custom the
City has afforded the policy chief policymaking authority with regard to non-disciplinary
employment decisions: First, Chief Nero’s statement that he is a policymaker for the
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Georgetown Police Department does not specify in what context he has policymaking
authority. Specifically, Chief Nero does not state whether his policymaking authority extends
beyond law enforcement decisions to include employment decisions. Moreover, this
statement fails to substantiate how he has been conferred his policymaking authority or
explain how his policymaking authority relates to the authorities of other City officials, such
as the Civil Service Director and City Manager. Second, the fact that he viewed his decision
as final from the perspective of the police department at best indicates he has been afforded
some degree of discretion in the employment context, it does not demonstrate that he is
responsible for making employment policy. Nor does it definitely establish the finality of his
decision, as it remains possible that his decision was subject to review by other City officials
outside the police department.
In sum, it is not clear that state or local law expressly confers Chief Nero with final
policymaking authority with regard to non-disciplinary employment decisions. Moreover, the
minimal evidence presently before the Court is insufficient to establish that Chief Nero has
been conferred this authority by custom or practice. Accordingly, Brown has failed to
demonstrate a right to summary judgment on the issue of municipal liability.
IV.

Conclusion
Plaintiff’s Motion for Partial Summary Judgment, (Dkt. 36), is hereby GRANTED IN

PART AND DENIED IN PART, consistent with the terms of this order.
It is hereby established, pursuant to Federal Rule of Civil Procedure 56, that Plaintiff
Stephanie Brown’s federal constitutional right to procedural due process was violated when she was
denied an administrative hearing following the termination of her employment with the Georgetown
Police Department on November 8, 2015.

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All other relief requested is hereby DENIED.
SIGNED on March 31, 2017.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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