Anderson v. City of Dallas

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 30, 2000
• Docket: 99-11196
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-11196 (Summary Calendar)

LORETTA ANDERSON,

Plaintiff-Appellant,

versus

CITY OF DALLAS, doing business as Civil Service Department,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas (3:98-CV-793-D) - - - - - - - - - - May 26, 2000

Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Loretta Anderson, proceeding pro se in the

district court and in this appeal, asks us to reverse the district

court’s dismissal of her claims against Defendant-Appellee City of

Dallas d/b/a Civil Service Department (“the City”) arising from the

unintentional omission of her name from the list of certified

eligible applicants for the position of Computer Operations

Specialist in the City’s ECI Department. As a result of that

omission, she was not considered for the opening, and it was

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ultimately filled by another applicant. We affirm the rulings of

the district court which culminated in the dismissal of Anderson’s

action against the City.

Liberally construing Anderson’s pleadings, the district court

determined that her procedural and substantive due process claims

under the Fourteenth Amendment of the United States Constitution

could only succeed if Anderson could establish a constitutionally

protected property interest in the proceedings of the City’s

Grievance Committee or in her potential promotion to Computer

Operations Specialist. Initially, the court allowed Anderson an

additional thirty days following the filing of its Memorandum

Opinion and Order on August 19, 1999 in which to respond to the

court’s sua sponte concern about Anderson’s property interest.

Following Anderson’s timely response, the court filed another

Order, on September 22, granting the City’s Motion for Summary

Judgment by dismissing Anderson’s substantive and procedural due

process claims. Relying principally on Cabrol v. Town of

Youngsville, 106 F.3d 101 (5th Cir. 1997), the court concluded that

Anderson failed to establish a property right, first by relying on

procedural rights as a property interest and then by relying on

those rights to create an entitlement to promotion. We agree with

the court’s determination in this regard.1

1 We also agree with the court’s rejection of Anderson’s contention that the City’s motion was untimely under N.D.Tex. Civ. R. 56.2(a), given the court’s setting of September 1, 1999 as the deadline and the City’s filing of its motion on June 23, 1999, well ahead of that deadline.

2 In its earlier ruling, the district court dismissed on grounds

of sovereign immunity Anderson’s negligence claim against the City

for its employee’s failure to include Anderson’s name on the list

of certified eligible candidates for the position she sought.

Because this state law claim runs afoul of the Texas Tort Claims

Act (“TCA”),2 under State v. Terrell, 588 S.W. 2d 784 (Tex. 1979),

there is no doubt that the City is entitled to sovereign immunity

absent a waiver —— and the district court correctly determined that

neither the City nor the Statutes of Texas have waived such

immunity. The district court was equally correct in rejecting

Anderson’s reliance on the City Charter as a source of her cause of

action. As noted by the court, the City Charter does not expressly

authorize a private right of action under the circumstances of this

case, see Stewart Title Guar. Co. v. Becker, 930 S.W. 2d 748, 754

(Tex. App. 1996, writ denied); and there is no basis under the

instant facts for the court to impute a private right of action

under the City Charter.

In conclusion, our review of the record in this case and the

analysis of the facts and law as presented by the appellate briefs

of the parties satisfies us that the judgments of the district

court, as reflected in its Memorandum Opinion and Order of August

19, 1999 and its Order of September 22, 1999, should be affirmed

essentially for the reasons set forth therein.

AFFIRMED.

2 Tex. Civ. Prac. & Rm. Code Ann. §§ 101.001-109 (West 1997 & Supp. 1999).