Floyd Campbell v. James R. Purtle , 184 F.3d 991 ( 1999 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 98-4149
    ___________
    Floyd Campbell,                          *
    *
    Appellant,                 *
    *
    v.                                * Appeal from the United States
    * District Court for the Western
    James R. Purtle, Individually and in     * District of Arkansas.
    his Official Capacity as Chief of Police *
    for the City of Hope; Catherine Cook, *
    in her Official Capacity as City         *
    Manager for the City of Hope; The        *
    City of Hope, Arkansas,                  *
    *
    Appellees.                 *
    ___________
    Submitted: June 16, 1999
    Filed: July 21, 1999
    ___________
    Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER,1
    District Judge.
    ___________
    BEAM, Circuit Judge.
    1
    The Honorable Owen M. Panner, United States District Judge for the District
    of Oregon, sitting by designation.
    A police officer who was an at-will employee brought this section 1983 action
    and state law wrongful discharge claim against his city employer, alleging that he was
    discharged in violation of public policy and without due process. The district court2
    found that the police officer failed to present evidence that he was fired in
    contravention of public policy and that he had received an adequate hearing prior to his
    termination. We affirm.
    I.    BACKGROUND
    Floyd Campbell was employed as a police officer with the City of Hope,
    Arkansas (City). There is no dispute that he was an at-will employee. On February
    20, 1996, pursuant to an outstanding arrest warrant, Campbell arrested Sandy Purtle,
    the niece of James Purtle, the chief of police for the City. A few months later,
    Campbell used some physical force while arresting a suspect. A fellow officer felt that
    the force was unwarranted and reported the incident to Chief Purtle. Purtle ordered an
    internal affairs investigation and placed Campbell on administrative leave with pay.
    Campbell sent a grievance letter to Catherine Cook, the City Manager,
    questioning the investigation and requesting reinstatement. He later supplemented the
    grievance with another letter on May 3, relating his version of the events leading to the
    investigation, and questioning some of the conclusions that he had learned were in the
    investigative report. Campbell, and his attorney, met with Cook on May 7. Campbell
    related the events surrounding the allegation of excessive force and again voiced his
    complaints about the investigation. After investigating Campbell's concerns, Cook
    responded in a letter on May 20 that Campbell's administrative leave was proper, and
    that she found no inconsistencies in the internal affairs investigation. The internal
    affairs investigation concluded that "the use of force employed on [the arrestee] by
    2
    The Honorable Harry F. Barnes, United States District Judge for the Western
    District of Arkansas.
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    Officer Campbell was unnecessary and excessive." Campbell was terminated on May
    21. On May 22, he appealed to Cook as provided in City personnel regulations. Cook
    then reviewed Purtle's decision and "found no indication that Chief Purtle allowed his
    personal feelings to interfere with his decision to terminate [Campbell's] employment."
    Campbell filed this action, alleging a section 1983 violation and a wrongful
    discharge claim under state law. In his section 1983 claim, Campbell argues that, even
    though he was an at-will employee, he had a property interest in his job because
    Arkansas recognizes the "public policy" exception to the at-will doctrine. Under
    Arkansas law, an at-will employee may be discharged at any time without cause. See
    Skeets v. Johnson, 
    816 F.2d 1213
    , 1215 (8th Cir. 1987) (en banc). However, the
    employee may have a cause of action for wrongful discharge if fired in violation of a
    well-established public policy of the state. See Sterling Drug, Inc. v. Oxford, 
    743 S.W.2d 380
    , 385 (Ark. 1988). Campbell argues that the public policy exception
    became part of his employment agreement with the City. Thus, he argues, he has a
    right to be free from termination for a reason that is contrary to a well-established
    public policy of Arkansas. He asserts that the real reason for his termination is his
    arrest of the Chief's niece. Because the lawful arrest occurred in the performance of
    his public duty, he asserts that he was entitled to a pre-termination hearing. Campbell
    asserts that he was entitled to a pre-termination hearing with Chief Purtle because
    Purtle was the individual who fired him.
    The district court granted summary judgment to the defendants. It held that the
    public policy exception to the at-will employment doctrine does not create a
    constitutionally protected property right, but, at most, creates a cause of action for
    wrongful discharge. In the alternative, the court held that even if Campbell did have
    a property right, he received a hearing sufficient to satisfy the requirements of due
    process. The district court also granted summary judgment to the defendants on the
    wrongful discharge claim, finding that the "only support for improper motive lies in
    [Campbell's] statement that Purtle would not speak to him following the arrest of his
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    niece." The district court thus found no genuine issue of material fact on whether the
    City's proffered reason for the termination was a mere pretext for retaliation. In this
    appeal, Campbell presents the same arguments that he presented to the district court.
    II.   DISCUSSION
    We review a grant of summary judgment de novo, considering all evidence in a
    light most favorable to the nonmoving party. See Munz v. Michael, 
    28 F.3d 795
    , 798
    (8th Cir. 1994). A motion for summary judgment should be granted if there is no
    genuine issue of material fact and the moving party is entitled to judgment as a matter
    of law. See 
    id. We need
    not decide whether the public policy exception creates a
    constitutionally protected property right3 because even if it does, Campbell received
    ample due process before termination. Due process is a flexible concept and the
    amount and type of process due depends on the nature of the right being protected and
    the nature of the post-termination proceedings available. See, e.g., Cleveland Bd. of
    Educ. v. Loudermill, 
    470 U.S. 532
    , 545 (1985). In Loudermill, the employee was a
    tenured civil servant who could not be discharged except for cause, a much greater and
    more tangible property right than that claimed by Campbell. The Supreme Court held
    that "the pre-termination hearing need not definitively resolve the propriety of the
    discharge. It should be an initial check against mistaken decisions—essentially, a
    3
    We do, however, note that in all the authority cited by the parties, courts have
    consistently held that the exception does not create a property right, and at most creates
    a cause of action for wrongful discharge. See Rojicek v. Community Consol. Sch.
    Dist., 
    888 F. Supp. 878
    , 884 (N.D. Ill. 1995); Hughes v. Bedsole, 
    913 F. Supp. 420
    ,
    429-30 (E.D. N.C. 1994); Reitz v. Persing, 
    831 F. Supp. 410
    , 414 (M.D. Pa. 1993);
    DeAngelis v. Lynch, No. CIV.A. 87-4610, 
    1988 WL 25306
    , at *3 (E.D. Pa. Mar. 15,
    1988) (unpublished); Wulf v. City of Wichita, 
    644 F. Supp. 1211
    , 1222 (D. Kan. 1986),
    partially reversed on other grounds, 
    883 F.2d 842
    (10th Cir. 1989).
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    determination of whether there are reasonable grounds to believe that the charges
    against the employee are true." 
    Id. at 545-46.
    Assuming, for the sake of argument, that
    Campbell had a property right in his employment, the hearing he received was more
    than adequate to protect that interest. Campbell was allowed to give his version of the
    events leading to the investigation both in writing and in person with his attorney
    present, as well as to voice his concern that the investigation was motivated by personal
    animosity on the part of Purtle. Cook investigated and concluded that the internal
    police investigation showed no inconsistencies. After his termination, Campbell was
    afforded a second administrative review. We agree with the district court that
    Campbell received all the process he was due, if any was due at all.
    Campbell also appeals the district court's grant of summary judgment to the City
    on his wrongful discharge claim. We agree with the district court that Campbell failed
    to raise an issue of material fact. We have reviewed the record and find the remainder
    of Campbell's arguments to be without merit.
    III.   CONCLUSION
    The judgment of the district court is affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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