On respondent Chief of Police's recommendation, respondent City
Manager terminated petitioner's employment as a policeman without a
hearing, telling him privately that the dismissal was based on a
failure to follow orders, poor attendance at police training
classes, causing low morale, and conduct unsuited to an officer. A
city ordinance provides that a permanent city employee (as
petitioner was classified) may be discharged if he fails to perform
work up to the standard of his classification, or if he is
negligent, inefficient, or unfit to perform his duties. Petitioner
brought suit against respondents, claiming that, as a "permanent
employee" he had a constitutional right to a pre-termination
hearing; that the ordinance, even though not expressly so
providing, should be read to prohibit discharge for any reason
other than those specified, and therefore to confer tenure on all
permanent employees; that his period of service, together with his
"permanent" classification, gave him a sufficient expectation of
continued employment to constitute a protected property interest
under the Due Process Clause of the Fourteenth Amendment; and that
the false explanation for his discharge deprived him of interest in
liberty protected by that Clause. During pretrial discovery,
petitioner was again advised of the reasons for his dismissal. The
District Court granted respondents' motion for a summary judgment,
holding, on the basis of its understanding of state law, that
petitioner "held his position at the will and pleasure of the
city." The Court of Appeals affirmed.
Held:
1. Under the District Court's tenable view of state law, which
was upheld by the Court of Appeals and which will be accepted by
this Court in the absence of any authoritative state court
interpretation of the ordinance involved, petitioner's discharge
did not deprive him of a property interest protected by the Due
Process Clause of the Fourteenth Amendment. Pp.
426 U. S.
343-347.
2. Assuming that the explanation for petitioner's discharge was
false, as this Court must do, since summary judgment was entered
against him, such false explanation did not deprive him of an
interest in liberty protected by that Clause. Pp.
426 U. S.
347-349.
Page 426 U. S. 342
(a) Since the City Manager's private oral communication to
petitioner of the reasons for his discharge was never made public,
it cannot properly form the basis for a claim that petitioner's
interest in his "good name, reputation, honor, or integrity" was
thereby impaired. Nor can the communication of such reasons during
pretrial discovery provide retroactive support for such claim,
since it was made in the course of a judicial proceeding that did
not commence until after petitioner had suffered his alleged
injury. Pp.
426 U. S.
348-349.
(b) The truth or falsity of the City Manager's explanation
determines whether or not his decision to discharge petitioner was
correct or prudent, but neither enhances nor diminishes
petitioner's claim that his constitutionally protected interest in
liberty was impaired. P.
426 U. S.
349.
Affirmed.
See 48 F.2d 1341.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
426 U. S. 350.
WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL,
and BLACKMUN, JJ., joined,
post, p.
426 U. S. 355.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
426 U. S.
361.
MR. JUSTICE STEVENS delivered the opinion of the Court.
Acting on the recommendation of the Chief of Police, the City
Manager of Marion, N.C. terminated petitioner's employment as a
policeman without affording him a hearing to determine the
sufficiency of the cause for his discharge. Petitioner brought suit
contending
Page 426 U. S. 343
that, since a City ordinance classified him as a "permanent
employee," he had a constitutional right to a pre-termination
hearing. [
Footnote 1] During
pretrial discovery, petitioner was advised that his dismissal was
based on a failure to follow certain orders, poor attendance at
police training classes, causing low morale, and conduct unsuited
to an officer. Petitioner and several other police officers filed
affidavits essentially denying the truth of these charges. The
District Court granted defendants' motion for summary judgment.
[
Footnote 2] The Court of
Appeals affirmed, [
Footnote 3]
and we granted certiorari, 423 U.S. 890.
The questions for us to decide are (1) whether petitioner's
employment status was a property interest protected by the Due
Process Clause of the Fourteenth Amendment, [
Footnote 4] and, (2) assuming that the explanation
for his discharge was false, whether that false explanation
deprived him of an interest in liberty protected by that
Clause.
I
Petitioner was employed by the city of Marion as a probationary
policeman on June 9, 1969. After six months, he became a permanent
employee. He was dismissed on March 31, 1972. He claims that he had
either an express or an implied right to continued employment.
Page 426 U. S. 344
A city ordinance provides that a permanent employee may be
discharged if he fails to perform work up to the standard of his
classification, or if he is negligent, inefficient, or unfit to
perform his duties. [
Footnote
5] Petitioner first contends that, even though the ordinance
does not expressly so provide, it should be read to prohibit
discharge for any other reason, and therefore to confer tenure on
all permanent employees. In addition, he contends that his period
of service, together with his "permanent" classification, gave him
a sufficient expectancy of continued employment to constitute a
protected property interest.
A property interest in employment can, of course, be created by
ordinance, or by an implied contract. [
Footnote 6] In either case, however, the sufficiency of
the claim of entitlement must be decided by reference to state law.
[
Footnote 7]
Page 426 U. S. 345
The North Carolina Supreme Court has held that an enforceable
expectation of continued public employment in that State can exist
only if the employer by statute or contract, has actually granted
some form of guarantee.
Still v. Lance, 279 N.C. 254,
182 S.E.2d
403 (1971). Whether such a guarantee has been given can be
determined only by an examination of the particular statute or
ordinance in question.
On its face, the ordinance on which petitioner relies may fairly
be read as conferring such a guarantee. However, such a reading is
not the only possible interpretation; the ordinance may also be
construed as granting no right to continued employment, but merely
conditioning an employee's removal on compliance with certain
specified procedures. [
Footnote
8] We do not have any authoritative interpretation of this
ordinance by a North Carolina state court. We do, however, have the
opinion of the United States District Judge who, of course, sits in
North Carolina and practiced law there for many years. Based on his
understanding of state law, he concluded that petitioner "held his
position at the will and pleasure of the city." [
Footnote 9] This construction of North
Page 426 U. S. 346
Carolina law was upheld by the Court of Appeals for the Fourth
Circuit, albeit by an equally divided court. In comparable
circumstances, this Court has accepted the interpretation of state
law in which the District Court and the Court of Appeals have
concurred even if an examination of the state law issue without
such guidance might have justified a different conclusion.
[
Footnote 10]
Page 426 U. S. 347
In this case, as the District Court construed the ordinance, the
City Manager's determination of the adequacy of the grounds for
discharge is not subject to judicial review; the employee is merely
given certain procedural rights which the District Court found not
to have been violated in this case. The District Court's reading of
the ordinance is tenable; it derives some support from a decision
of the North Carolina Supreme Court,
Still v. Lance,
supra; and it was accepted by the Court of Appeals for the
Fourth Circuit. These reasons are sufficient to foreclose our
independent examination of the state law issue.
Under that view of the law, petitioner's discharge did not
deprive him of a property interest protected by the Fourteenth
Amendment.
II
Petitioner's claim that he has been deprived of liberty has two
components. He contends that the reasons given for his discharge
are so serious as to constitute a stigma that may severely damage
his reputation in the community; in addition, he claims that those
reasons were false.
In our appraisal of petitioner's claim, we must accept his
version of the facts, since the District Court granted summary
judgment against him. [
Footnote
11] His evidence established
Page 426 U. S. 348
that he was a competent police officer; that he was respected by
his peers; that he made more arrests than any other officer on the
force; that, although he had been criticized for engaging in
high-speed pursuits, he had promptly heeded such criticism; and
that he had a reasonable explanation for his imperfect attendance
at police training sessions. We must therefore assume that his
discharge was a mistake, and based on incorrect information.
In
Board of Regents v. Roth, 408 U.
S. 564, we recognized that the nonretention of an
untenured college teacher might make him somewhat less attractive
to other employers, but nevertheless concluded that it would
stretch the concept too far "to suggest that a person is deprived
of
liberty' when he simply is not rehired in one job, but
remains as free as before to seek another." Id. at
408 U. S. 575.
This same conclusion applies to the discharge of a public employee
whose position is terminable at the will of the employer when there
is no public disclosure of the reasons for the discharge.
In this case, the asserted reasons for the City Manager's
decision were communicated orally to the petitioner in private, and
also were stated in writing in answer to interrogatories after this
litigation commenced. Since the former communication was not made
public, it cannot properly form the basis for a claim that
petitioner's interest in his "good name, reputation, honor, or
integrity" [
Footnote 12] was
thereby impaired. And since the latter communication was made in
the course of a judicial proceeding which did not commence until
after petitioner had suffered the injury for which he seeks
redress, it surely cannot provide retroactive support for his
claim. A contrary
Page 426 U. S. 349
evaluation of either explanation would penalize forthright and
truthful communication between employer and employee in the former
instance, and between litigants in the latter.
Petitioner argues, however, that the reasons given for his
discharge were false. Even so, the reasons stated to him in private
had no different impact on his reputation than if they had been
true. And the answers to his interrogatories, whether true or
false, did not cause the discharge. The truth or falsity of the
City Manager's statement determines whether or not his decision to
discharge the petitioner was correct or prudent, but neither
enhances nor diminishes petitioner's claim that his
constitutionally protected interest in liberty has been impaired.
[
Footnote 13] A contrary
evaluation of his contention would enable every discharged employee
to assert a constitutional claim merely by alleging that his former
supervisor made a mistake.
The federal court is not the appropriate forum in which to
review the multitude of personnel decisions that are made daily by
public agencies. [
Footnote
14] We must accept the
Page 426 U. S. 350
harsh fact that numerous individual mistakes are inevitable in
the day-to-day administration of our affairs. The United States
Constitution cannot feasibly be construed to require federal
judicial review for every such error. In the absence of any claim
that the public employer was motivated by a desire to curtail or to
penalize the exercise of an employee's constitutionally protected
rights, we must presume that official action was regular, and, if
erroneous, can best be corrected in other ways. The Due Process
Clause of the Fourteenth Amendment is not a guarantee against
incorrect or ill-advised personnel decisions.
The judgment is affirmed.
So ordered.
[
Footnote 1]
He relied on 42 U.S.C. § 1983, invoking federal jurisdiction
under 28 U.S.C. § 1343(3). He sought reinstatement and backpay. The
defendants were the then City Manager, Chief of Police, and the
city of Marion. Since the city is not a "person" within the meaning
of the statute, it was not a proper defendant.
Monroe v.
Pape, 365 U. S. 167,
365 U. S.
187-192.
[
Footnote 2]
377 F.
Supp. 501 (WDNC 1973).
[
Footnote 3]
A three-judge panel of the Court of Appeals affirmed, with one
judge dissenting, 498 F.2d 1341 (CA4 1974); then, after granting a
rehearing en banc, the court affirmed without opinion by an equally
divided court.
[
Footnote 4]
"[N]or shall any State deprive any person of life, liberty, or
property, without due process of law. . . ." U.S.Const., Amdt.
14.
[
Footnote 5]
Article II, § 6, of the Personnel Ordinance of the city of
Marion, reads as follows:
"
Dismissal. A permanent employee whose work is not
satisfactory over a period of time shall be notified in what way
his work is deficient and what he must do if his work is to be
satisfactory. If a permanent employee fails to perform work up to
the standard of the classification held, or continues to be
negligent, inefficient, or unfit to perform his duties, he may be
dismissed by the City Manager. Any discharged employee shall be
given written notice of his discharge setting forth the effective
date and reasons for his discharge if he shall request such a
notice."
[
Footnote 6]
In
Perry v. Sindermann, 408 U.
S. 593,
408 U. S. 601,
the Court said that a
"person's interest in a benefit is a 'property' interest for due
process purposes if there are . . . rules or mutually explicit
understandings that support his claim of entitlement to the benefit
and that he may invoke at a hearing."
[
Footnote 7]
"Property interests, of course, are not created by the
Constitution. Rather, they 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."
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S.
577.
[
Footnote 8]
This is not the construction which six Members of this Court
placed on the federal regulations involved in
Arnett v.
Kennedy, 416 U. S. 134. In
that case, the Court concluded that, because the employee could
only be discharged for cause, he had a property interest which was
entitled to constitutional protection. In this case, a holding
that, as a matter of state law, the employee "held his position at
the will and pleasure of the city" necessarily establishes that he
had no property interest. The Court's evaluation of the federal
regulations involved in
Arnett sheds no light on the
problem presented by this case.
[
Footnote 9]
"Under the law in North Carolina, nothing else appearing, a
contact of employment which contains no provision for the duration
or termination of employment is terminable at the will of either
party irrespective of the quality of performance by the other
party. By statute, G.S. § 11142(b), a county board of education in
North Carolina may terminate the employment of a teacher at the end
of the school year without filing charges or giving its reasons for
such termination, or granting the teacher an opportunity to be
heard.
Still v. Lance, 279 N.C. 254,
182 S.E.2d
403 (1971)."
"It is clear from Article II, Section 6, of the City's Personnel
Ordinance, that the dismissal of an employee does not require a
notice or a hearing. Upon request of the discharged employee, he
shall be given written notice of his discharge setting forth the
effective date and the reasons for the discharge. It thus appears
that both the city ordinance and the state law have been complied
with."
"It further appears that the plaintiff held his position at the
will and pleasure of the city."
377 F. Supp. at 504.
[
Footnote 10]
See United States v. Durham Lumber Co., 363 U.
S. 522. In
Propper v. Clark, 337 U.
S. 472,
337 U. S.
486-487, the Court stated:
"The precise issue of state law involved,
i.e., whether
the temporary receiver under § 977-b of the New York Civil Practice
Act is vested with title by virtue of his appointment, is one which
has not been decided by the New York courts. Both the District
Court and the Court of Appeals faced this question and answered it
in the negative. In dealing with issues of state law that enter
into judgments of federal courts, we are hesitant to overrule
decisions by federal courts skilled in the law of particular states
unless their conclusions are shown to be unreasonable."
In Township of Hillsborough v. Cromwell, 326 U.
S. 620,
326 U. S.
629-630, the Court stated:
"Petitioner makes an extended argument to the effect that
Duke Power Co. [v. State Board, 129 N.J.L. 449, 30 A.2d
416, 131 N.J.L. 275, 36 A.2d 201,] is not a controlling precedent
on the local law question on which the decision below turned. On
such questions, we pay great deference to the views of the judges
of those courts 'who are familiar with the intricacies and trends
of local law and practice.'
Huddleston v. Dwyer,
322 U. S.
232,
322 U. S. 237. We are unable
to say that the District Court and the Circuit Court of Appeals
erred in applying to this case the rule of
Duke Power Co. v.
State Board, which involved closely analogous facts."
And in
MacGregor v. State Mut. Life Assur. Co.,
315 U. S. 280,
315 U. S. 281,
the Court stated:
"No decision of the Supreme Court of Michigan, or of any other
court of that State, construing the relevant Michigan law has been
brought to our attention. In the absence of such guidance, we shall
leave undisturbed the interpretation placed upon purely local law
by a Michigan federal judge of long experience and by three circuit
judges whose circuit includes Michigan."
[
Footnote 11]
In granting summary judgment for respondents, the District Court
was required to resolve all genuine disputes as to material facts
in favor of petitioner. Fed.Rule Civ.Proc. 56(c);
Arnett v.
Kennedy, supra, at
416 U. S.
139-140.
[
Footnote 12]
See Wisconsin v. Constantineau, 400 U.
S. 433,
400 U. S. 437,
and the discussion of the interest in reputation allied to
employment in
Paul v. Davis, 424 U.
S. 693.
[
Footnote 13]
Indeed, the impact on petitioner's constitutionally protected
interest in liberty is no greater even if we assume that the City
Manager deliberately lied. Such fact might conceivably provide the
basis for a state law claim, the validity of which would be
entirely unaffected by our analysis of the federal constitutional
question.
[
Footnote 14]
The cumulative impression created by the three dissenting
opinions is that this holding represents a significant retreat from
settled practice in the federal courts. The fact of the matter,
however, is that the instances in which the federal judiciary has
required a state agency to reinstate a discharged employee for
failure to provide a pre-termination hearing are extremely rare.
The reason is clear. For unless we were to adopt MR. JUSTICE
BRENNAN's remarkably innovative suggestion that we develop a
federal common law of property rights, or his equally far-reaching
view that almost every discharge implicates a constitutionally
protected liberty interest, the ultimate control of state personnel
relationships is, and will remain, with the States; they may grant
or withhold tenure at their unfettered discretion. In this case,
whether we accept or reject the construction of the ordinance
adopted by the two lower court, the power to change or clarify that
ordinance will remain in the hands of the City Council of the city
of Marion.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
Petitioner was discharged as a policeman on the grounds of
insubordination, "causing low morale," and "conduct unsuited to an
officer."
Ante at
426 U. S. 343. It is difficult to imagine a greater
"badge of infamy" that could be imposed on one following
petitioner's calling; in a profession in which prospective
employees are invariably investigated, petitioner's job prospects
will be severely constricted by the governmental action in this
case. Although our case law would appear to require that petitioner
thus be accorded an opportunity "to clear his name" of this
calumny,
see, e.g., Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 573,
and n. 12 (1972);
Arnett v. Kennedy, 416 U.
S. 134,
416 U. S. 157
(1974) (opinion
Page 426 U. S. 351
of REHNQUIST, J.), the Court condones this governmental action
and holds that petitioner was deprived of no liberty interest
thereby.
Paul v. Davis, 424 U. S. 693
(1976), a decision overtly hostile to the basic constitutional
safeguards of the Due Process Clauses of the Fifth and Fourteenth
Amendments that I had hoped would be a "short-lived aberration,"
id. at
424 U. S. 735
(BRENNAN, J., dissenting), held that the
"interest in reputation asserted in [
Paul] is neither
'liberty' nor 'property' guaranteed against state deprivation
without due process of law."
Id. at
424 U. S. 712.
Accordingly, it found inapplicable the rule that,
"[w]here a person's good name, reputation, honor, or integrity
is at stake because of what the government is doing to him, notice
and an opportunity to be heard are essential."
Wisconsin v. Constantineau, 400 U.
S. 433,
400 U. S. 437
(1971), and cases cited therein. In so holding, the Court
eviscerated the substance of a long line of prior cases,
see,
e.g., Anti-Fascist Comm. v. McGrath, 341 U.
S. 123 (1951);
Cafeteria Workers v. McElroy,
367 U. S. 886
(1961);
Board of Regents v. Roth, supra, by confining
their protection of "liberty" to situations in which the State
inflicts damage to a government employee's "good name, reputation,
honor, or integrity" in the process of terminating his employment.
See Paul v. Davis, supra at
424 U. S. 708.
Compare id. at
424 U. S. 709,
424 U. S. 710,
with id. at
424 U. S.
732-733 (BRENNAN, J., dissenting). [
Footnote 2/1] Today, the Court effectively destroys
even that last vestige of protection for "liberty" by holding that
a State may tell an employee that he is being fired for some
nonderogatory reason, and then turn around and inform prospective
employers that the employee
Page 426 U. S. 352
was in fact discharged for a stigmatizing reason that will
effectively preclude future employment.
The Court purports to limit its holding to situations in which
there is "no public disclosure of the reasons for the discharge,"
ante at
426 U. S. 348,
but, in this case, the stigmatizing reasons have been disclosed,
and there is no reason to believe that respondents will not convey
these actual reasons to petitioner's prospective employers.
[
Footnote 2/2] The Court responds
by asserting that, since the stigma was imposed "after petitioner
had suffered the injury for which he seeks redress, it surely
cannot provide retroactive support for his claim."
Ibid.
But the "claim" does not arise until the State has officially
branded petitioner in some way, and the purpose of the due process
hearing is to accord him an opportunity to clear his name; merely
because the derogatory information is filed in respondents' records
and no "publication" occurs until shortly after his discharge from
employment does not subvert the fact that a post-deprivation
hearing to accord petitioner an opportunity to clear his name has
been contemplated by our cases. [
Footnote 2/3]
Page 426 U. S. 353
Even under
Paul v. Davis, respondents should be
required to accord petitioner a due process hearing in which he can
attempt to vindicate his name; this further expansion of those
personal interests that the Court simply writes out of the "life,
liberty, or property" Clauses of the Fifth and Fourteenth
Amendments is simply another curtailment of precious constitutional
safeguards that marks too many recent decisions of the Court.
I also fully concur in the dissenting opinions of MR. JUSTICE
WHITE and MR. JUSTICE BLACKMUN, which forcefully demonstrate the
Court's error in holding that petitioner was not deprived of
"property" without due process of law. I would only add that the
strained reading of the local ordinance, which the Court deems to
be "tenable,"
ante at
426 U. S. 347,
cannot be dispositive of the existence
vel non of
petitioner's "property" interest. There is certainly a federal
dimension to the definition of "property" in the Federal
Constitution; cases such as
Board of Regents v. Roth,
supra, held merely that "property" interests encompass those
to which a person has "a legitimate claim of entitlement," 408 U.S.
at
408 U. S. 577,
and can arise from "existing rules or understandings" that derive
from "an independent source
such as state law."
Ibid. (emphasis supplied). But certainly, at least before
a state law is definitively construed as not securing a "property"
interest, the relevant inquiry is whether it was objectively
reasonable for the employee to believe he could rely on continued
employment.
Cf. ibid. ("It is a purpose of the ancient
institution of property to protect those claims upon which people
rely in their daily lives, reliance that must not be arbitrarily
undermined." [
Footnote 2/4]) At a
minimum, this would require in this
Page 426 U. S. 354
case an analysis of the common practices utilized and the
expectations generated by respondents, and the manner in which the
local ordinance would reasonably be read by respondents' employees.
[
Footnote 2/5] These disputed
issues of fact are not meet for resolution, as they were on summary
judgment, and would thus, at a minimum, require a remand for
further factual development in the District Court.
These observations do not, of course, suggest that a "federal
court is . . . the appropriate forum in which to review the
multitude of personnel decisions that are made daily by public
agencies."
Ante at
426 U. S. 349.
However, the federal courts are the appropriate forum for ensuring
that the constitutional mandates of due process are followed by
those agencies of government making personnel decisions that
pervasively influence the lives of those affected thereby; the
fundamental premise of the Due Process Clause is that those
procedural safeguards will help the government avoid the "harsh
fact" of "incorrect or ill-advised personnel decisions."
Ante at
426 U. S.
350.
Page 426 U. S. 355
Petitioner seeks no more than that, and I believe that his
"property" interest in continued employment and his "liberty"
interest in his good name and reputation dictate that he be
accorded procedural safeguards before those interests are deprived
by arbitrary or capricious government action.
[
Footnote 2/1]
The Court in
Paul also ignored the clear import of
Goss v. Lopez, 419 U. S. 565
(1975);
Wisconsin v. Constantineau, 400 U.
S. 433 (1971); and
Jenkins v. McKeithen,
395 U. S. 411
(1969).
See Paul v. Davis, 424 U.S. at
424 U. S.
729-733 (BRENNAN, J., dissenting).
[
Footnote 2/2]
It is only common sense, to be sure, that prospective employers
will inquire as to petitioner's employment during the 33 months in
which he was in respondents' service.
[
Footnote 2/3]
The Court asserts that to provide petitioner with a
post-deprivation hearing when the stigmatizing reasons become known
during litigation "would penalize forthright and truthful
communication . . . between litigants."
Ante at
426 U. S. 349.
Of course, there are various sanctions under our judicial system to
ensure that testimony is "forthright and truthful" without
necessitating denial of petitioner's due process rights. And I
suppose the Court would declare that according a discharged
employee a post-deprivation hearing as soon as it is clear his
former employer is stigmatizing his name when it communicates with
prospective employers would similarly discourage "forthright and
truthful" communication between employers in that situation.
However, the purpose of the due process hearing is to provide
petitioner a mechanism for clearing his name of a cloud that is
not, in fact, "truthful."
[
Footnote 2/4]
By holding that States have "unfettered discretion" in defining
"property" for purposes of the Due Process Clause of the Federal
Constitution,
see ante at
426 U. S.
349-350, n, 14, the Court is, as my Brother WHITE
argues, effectively adopting the analysis rejected by a majority of
the Court in
Arnett v. Kennedy, 416 U.
S. 134 (1974). More basically, the Court's approach is a
resurrection of the discredited rights/privileges distinction, for
a State may now avoid all due process safeguards attendant upon the
loss of even the necessities of life,
cf. Goldberg v.
Kelly, 397 U. S. 254
(1970), merely by labeling them as not constituting "property."
See also, e.g., Bell v. Burson, 402 U.
S. 535 (1971);
Fuentes v. Shevin, 407 U. S.
67 (1972);
Morrissey v. Brewer, 408 U.
S. 471 (1972).
[
Footnote 2/5]
For example, petitioner was hired for a "probationary" period of
six months, after which he became a permanent' employee. No reason
appears on the record for this distinction, other than the logical
assumption, confirmed by a reasonable reading of the local
ordinance, that, after completion of the former period, an employee
may only be discharged for cause. As to respondents' personnel
practices, it is important to note that, in a department which
currently employs 17 persons, petitioners was the only discharge,
for cause or otherwise, during the period of over three years from
the time of his hiring until the time of pretrial discovery.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE BLACKMUN join, dissenting.
I dissent because the decision of the majority rests upon a
proposition which was squarely addressed, and, in my view,
correctly rejected, by six Members of this Court in
Arnett v.
Kennedy, 416 U. S. 134
(1974).
Petitioner Bishop was a permanent employee of the Police
Department of the city of Marion, N.C. The city ordinance
applicable to him provides:
"
Dismissal. A permanent employee whose work is not
satisfactory over a period of time shall be notified in what way
his work is deficient and what he must do if his work is to be
satisfactory.
If a permanent employee fails to perform
work up to the standard of the classification held, or continues to
be negligent, inefficient, or unfit to perform his duties, he may
be dismissed by the City Manager. Any discharged employee shall be
given written notice of his discharge setting forth the effective
date and reasons for his discharge if he shall request such a
notice."
(Emphasis added.) The second sentence of this ordinance plainly
conditions petitioner's dismissal on cause --
i.e.,
failure to perform up to standard, negligence, inefficiency, or
unfitness to perform the job. The District Court below did not
otherwise construe this portion of the ordinance. In the only part
of its opinion rejecting petitioner's claim that the ordinance gave
him a property interest in his job,
Page 426 U. S. 356
the District Court said, in an opinion predating this Court's
decision in
Arnett v. Kennedy, supra:
"It is clear from Article II, Section 6, of the City's Personnel
Ordinance that the dismissal of an employee does not require a
notice or a hearing. Upon request of the discharged employee, he
shall be given written notice of his discharge setting forth the
effective date and the reasons for the discharge. It thus appears
that both the city ordinance and the state law have been complied
with."
377 F.
Supp. 501, 504 (WDNC 1973). Thus, in concluding that petitioner
had no "property interest" in his job entitling him to a hearing on
discharge, and that he held his position "at the will and pleasure
of the city,"
ibid., the District Court relied on the fact
that the ordinance described its own procedures for determining
cause, which procedures did not include a hearing. The majority
purports,
ante at
426 U. S. 345, and n. 8, to read the District Court's
opinion as construing the ordinance not to condition dismissal on
cause, and, if this is what the majority means, its reading of the
District Court's opinion is clearly erroneous for the reasons just
stated. [
Footnote 3/1] However,
later in its opinion, the majority appears
Page 426 U. S. 357
to eschew this construction of the District Court's opinion and
of the ordinance. In the concluding paragraph of its discussion of
petitioner's property interest, the majority holds that, since
neither the ordinance nor state law provides for a hearing, or any
kind of review of the City Manager's dismissal decision, petitioner
had no enforceable property interest in his job. The majority
concludes:
"In this case, as the District Court construed the ordinance,
the City Manager's
determination of the adequacy of the grounds
for discharge is not subject to judicial review; the employee
is merely given certain procedural rights which the District Court
found not to have been violated in this case. The District Court's
reading of the ordinance is tenable. . . ."
Ante at
426 U. S. 347.
(Emphasis added.) The majority thus implicitly concedes that the
ordinance supplies the "grounds" for discharge and that the City
Manager must determine them to be "adequate" before he may fire an
employee. The majority's holding that petitioner had no property
interest in his job in spite of the unequivocal language in the
city ordinance that he may be dismissed only for certain kinds of
cause rests, then, on the fact that state law provides no
procedures for assuring that the City Manager dismiss him
only for cause. The right to his job apparently given by the first
two sentences of the ordinance is thus redefined, according to the
majority, by the procedures provided for in the third sentence,
and, as redefined, is infringed only if the procedures are not
followed.
This is precisely the reasoning which was embraced by only three
and expressly rejected by six Members of this Court in
Arnett
v. Kennedy, supra. There, a federal employee had "a statutory
expectancy that he not be removed other than for
`such cause as
will promote
Page 426 U. S.
358
the efficiency of [the] service.'" 416 U.S. at 416 U. S.
151-152 (opinion of REHNQUIST, J., joined by BURGER,
C.J., and STEWART, J.). The three Justices whose views were
rejected by a majority of the Court went on to say:
"But the very section of the statute which granted him that
right . . . expressly provided also for the procedure by which
'cause' was to be determined, and expressly omitted the procedural
guarantees which appellee insists are mandated by the Constitution.
Only by bifurcating the very sentence of the Act of Congress which
conferred upon appellee the right not to be removed save for cause
could it be said that he had an expectancy of that substantive
right without the procedural limitations which Congress attached to
it. . . ."
Id. at
416 U. S. 152.
The three Justices went on:
"Here, the property interest which appellee had in his
employment was itself conditioned by the procedural limitations
which had accompanied the grant of that interest. . . ."
Id. at
416 U. S. 155.
Accordingly, they concluded that the Constitution imposed no
independent procedural requirements.
This view was rejected by MR. JUSTICE POWELL in an opinion
joined by MR. JUSTICE BLACKMUN.
"The plurality opinion evidently reasons that the nature of
appellee's interest in continued federal employment is necessarily
defined and limited by the statutory procedures for discharge and
that the constitutional guarantee of procedural due process accords
to appellee no procedural protections against arbitrary or
erroneous discharge other than those expressly provided in the
statute. The plurality would thus conclude that the statute
governing federal employment determines not only the nature of
appellee's property interest, but also the extent of
Page 426 U. S. 359
the procedural protections to which he may lay claim. It seems
to me that this approach is incompatible with the principles laid
down in
Roth and
Sindermann. Indeed, it would
lead directly to the conclusion that whatever the nature of an
individual's statutorily created property interest, deprivation of
that interest could be accomplished without notice or a hearing at
any time. This view misconceives the origin of the right to
procedural due process. That right is conferred
not by
legislative grace, but by constitutional guarantee. While the
legislature may elect not to confer a property interest in federal
employment, it may not constitutionally authorize the deprivation
of such an interest, once conferred, without appropriate procedural
safeguards. . . ."
Id. at
416 U. S.
166-167. (Emphasis added.) I, too, disagreed with the
view stated in MR. JUSTICE REHNQUIST s opinion:
"I differ basically with the plurality's view that, 'where the
grant of a substantive right is inextricably intertwined with the
limitations on the procedures which are to be employed in
determining that right, a litigant in the position of appellee must
take the bitter with the sweet,' and that 'the property interest
which appellee had in his employment was itself conditioned by the
procedural limitations which had accompanied the grant of that
interest.'
Ante at
416 U. S.
153-154,
416 U. S. 155. The rationale
of this position quickly leads to the conclusion that, even though
the statute requires cause for discharge, the requisites of due
process could equally have been satisfied had the law dispensed
with any hearing at all, whether pre-termination or
post-termination."
Id. at
416 U. S.
177-178.
Page 426 U. S. 360
The view was also rejected by MR JUSTICE MARSHALL in an opinion
joined by MR. JUSTICE BRENNAN and Mr. Justice Douglas in which it
was correctly observed:
"Accordingly, a majority of the Court rejects MR. JUSTICE
REHNQUIST's argument that, because appellee's entitlement arose
from statute, it could be conditioned on a statutory limitation of
procedural due process protections, an approach which would render
such protection inapplicable to the deprivation of any statutory
benefit -- any 'privilege' extended by Government -- where a
statute prescribed a termination procedure, no matter how arbitrary
or unfair. It would amount to nothing less than a return, albeit in
somewhat different verbal garb, to the thoroughly discredited
distinction between rights and privileges which once seemed to
govern the applicability of procedural due process."
Id. at
416 U. S.
211.
The views now expressed by the majority are thus squarely
contrary to the views expressed by a majority of the Justices in
Arnett. As MR. JUSTICE POWELL suggested in
Arnett, they are also "incompatible with the principles
laid down in
Roth and
Sindermann." [
Footnote 3/2]
Id. at
416 U. S. 166.
I would not so soon depart from these cases nor from the views
expressed by a majority in
Arnett. The ordinance plainly
grants petitioner a right to his job unless there is cause to fire
him. Having granted him such a right, it is the Federal
Constitution, [
Footnote 3/3]
Page 426 U. S. 361
not state, law which determines the process to be applied in
connection with any state decision to deprive him of it.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins,
dissenting.
I join MR. JUSTICE WHITE's dissent, for I agree that the Court
appears to be adopting a legal principle which specifically was
rejected by a majority of the Justices of this Court in
Arnett
v. Kennedy, 416 U. S. 134
(1974).
I also feel, however, that
Still v. Lance, 279 N.C.
254,
182 S.E.2d
403 (1971), the only North Carolina case cited by the Court and
by the District Court, is by no means the authoritative holding on
state law that the Court,
ante at
426 U. S. 345,
and n. 9, seems to think it is. In
Still, the Supreme
Court of North Carolina considered a statute that contained no "for
cause" standard for failure to renew a teacher's contract at the
end of a school year. In holding that this provision did
not create a continued expectation of employment, the North
Carolina court noted that it
"does not limit the right of the employer board to terminate the
employment of a teacher at the
Page 426 U. S. 362
end of a school year to a specified cause or circumstance."
279 N.C. at 260, 182 S.E.2d at 407. This provision, the court
observed, stood in sharp contrast with another provision of the
statute relating to termination of employment
during the
school year and prescribing that, when "it shall have been
determined that the services of an employee are not
acceptable for the remainder of the current school year"
(emphasis added),
ibid., notice and hearing were
required.
The Marion ordinance in the present case contains a "for cause"
standard for dismissal, and, it seems to me, is like that portion
of the statute construed in
Still pertaining to
termination of employment during the year. As such, it plainly does
not subject an employee to termination at the will and pleasure of
the municipality, but, instead, creates a proper expectation of
continued employment so long as he performs his work
satisfactorily. At this point, the Federal Constitution steps in
and requires that appropriate procedures be followed before the
employee may be deprived of his property interest.
[
Footnote 3/1]
The Court accepts the District Court's conclusion that the city
employee holds his position at the will and pleasure of the city.
If the Court believes that the District Court's conclusion did not
rest on the procedural limitations in the ordinance, then the Court
must construe the District Court's opinion -- and the ordinance --
as permitting, but not limiting, discharges to those based on the
causes specified in the ordinance. In this view, discharges for
other reasons or for no reason at all could be made. Termination of
employment would in effect be within the complete discretion of the
city; and, for this reason, the employee would have no property
interest in his employment which would call for the protections of
the Due Process Clause. As indicated in the text, I think this
construction of the ordinance and of the District Court's opinion
is in error.
[
Footnote 3/2]
Board of Regents v. Roth, 408 U.
S. 564 (1972), and
Perry v. Sindermann,
408 U. S. 593
(1972).
[
Footnote 3/3]
The majority intimates,
ante at
426 U. S. 345
n. 8, that the views of the three plurality Justices in
Arnett
v. Kennedy were rejected because the other six Justices
disagreed on the question of how the federal statute involved in
that case should be construed. This is incorrect. All Justices
agreed on the meaning of the statute. As the remarks of the six
Justices quoted above indicate, it was the constitutional
significance of the statute on which the six disagreed with the
plurality.
Similarly, here I do not disagree with the majority or the
courts below on the meaning of the state law. If I did, I might be
inclined to defer to the judgments of the two lower courts. The
state law says that petitioner may be dismissed by the City Manager
only for certain kinds of cause and then provides that he will
receive notice and an explanation, but no hearing and no review. I
agree that, as a matter of state law, petitioner has no remedy no
matter how arbitrarily or erroneously the City Manager has acted.
This is what the lower courts say the statute means. I differ with
those courts and the majority only with respect to the
constitutional significance of an unambiguous state law. A majority
of the Justices in
Arnett v. Kennedy stood on the
proposition that the Constitution requires procedures not required
by state law when the state conditions dismissal on "cause."