Justices Let Stand Ruling That Police Manual Created Interest in Continued Employment

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By Jay-Anne Casuga

Nov. 10 — The U.S. Supreme Court Nov. 10 declined to review a split federal appeals court ruling that a fired Decherd, Tenn., police chief and patrolman each had a property interest in continued employment based on a department policy manual.

In June 2014, the U.S. Court of Appeals for the Sixth Circuit 2-1 reversed summary judgment to the city on Terry Freeze and Earnest Colvin's 14th Amendment due process claims under the Civil Rights Act of 1871 (42 U.S.C. § 1983).

The majority found that the department policies and procedures manual, which stated that “discipline shall be for cause and follow the basic concepts of due process,” contained “unequivocal” language creating an employment contract between the city and the officers.

The manual also established a property right in continued employment “subject to only termination for good cause,” thus removing the officers from at-will employment status, the majority said.

Petitioning for high court review, the city argued that the justices must resolve a circuit split created by the Sixth Circuit's decision on whether an at-will employee has a property right to continued employment based solely on “a policy of progressive discipline or a policy of discipline for cause” like the one in the current case.

It also contended that the Sixth Circuit's ruling, if left to stand, would impermissibly expand the scope of procedural due process and limit the at-will employment doctrine.

Freeze and Colvin waived their right to respond.

City Alleged Circuit Split

According to the city, the Sixth Circuit majority concluded that a guarantee of “discipline for cause” creates a constitutional right to termination only for cause.

By contrast, it said, the Eighth Circuit in Bennett v. Watters, 260 F.3d 925 (8th Cir. 2001), held that for-cause discipline of a public employee wasn't the same as providing that employee with a right to continued employment.

The city added that the Seventh Circuit in Cromwell v. City of Momence, 713 F.3d 361, 35 IER Cases 621 (7th Cir. 2013), reached a similar determination.

“The conflict between these opinions and the [Sixth Circuit] majority arise from the circuit majority's erroneous conclusion that employment discipline and termination are interchangeable,” the city said. “Petitioner requests that [the Supreme Court] grant a Writ of Certiorari to preserve the distinction between the two under the Due Process Clause.”

City Claims Ruling Limits At-Will Doctrine

Additionally, the city argued that by “conflating employment discipline and termination,” the Sixth Circuit's ruling improperly “limits” the at-will employment doctrine and “creates a due process right where none exists.”

“The circuit majority's holding eliminates at-will employment where an employer creates an expectation of discipline for cause,” it said. “In fact, reliance on this holding may have the effect of shaping a due process right to discipline for cause short of termination, a right this Court has yet to address.”

Ortale, Kelley, Herbert & Crawford represented the city and officials. Kerry E. Knox of Murfreesboro, Tenn., represented Freeze and Colvin.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com